Hallman v. Dothan Foundry & MacHine Co.

SAMFORD, J. The plaintiff relied for recovery upon a mortgage properly executed by one J. W. Wilson and duly recorded on September 6, 1917. This mortgage described one Ford motor and frame with “a Smith-Form-a-Truck attachment attached, the attachment this day delivered to him.’'’ About the 1st of September, Wilson, the mortgagor, purchased of the plaintiff a Smith" Form-a-Truck attachment, complete, to be attached to a Ford chassis which he brought to the plaintiff’s place of business. Wilson did not pay for the Form-a-Truck attachment, but executed the mortgage, hereinabove referred to, to secure the liurchase price. The Ford chassis brought to the plaintiff consisted of a frame, wheels, gear, and motor; the Form-a-Truck attachment consisted of main truck, springs, rear wheels, and axle, chains, sprocket, differential, and differential housing. To attach the Form-a-Truck attachment to the Ford chassis, it became necessary to take off the rear wheels of the Ford chassis, the rear axle, and the back springs, shove the frame of the Form-a-Truck up to the frame of the Ford chassis, then bolt it in front on the left with three bolts, on the right with two bolts and the rear with two bolts. The plaintiff furnished the differential and the axle housing, and connected it up with the Ford drive shaft, put .the springs on the axle shafting, put the chains on the truck, and it was then ready to go. The bolts used were ordinary bolts with nuts screwed on, which could be readily removed by unscrewing the nuts and removing the bolts, which detached the Form-a-Truck attachment from the Ford frame. Everything removed from the Ford chassis preparatory to attaching the truck was carried off by Wilson. The sale price of the Form-a-Truck attachment complete was $375, and there waá a balance due on the purchase price of $27.5. It was shown that the reasonable and fajr market value of the Form-aTruclc attachment at the time of the trial was $275. It was also shown that the Form-a-Truck attachment described in the complaint and seized by the sheriff was the same one sold by plaintiff to Wilson and described in the mortgage introduced in evidence by the plaintiff, and before the bringing of the suit plaintiff notified the defendant that the truck was the property of the plaintiff, and demanded the same, the defendant refusing to' deliver possession. It was further shown that at the time of the sale of the truck, and the taking of the mortgage to secure the price, plaintiff did not know that there was a mortgage against the Ford chassis. The defendant offered in evidence a mortgage executed by the same mortgagor on August 1, 1916, to T. W. Harris, conveying one Ford runabout automobile. This mortgage was duly recorded. .It was admitted by the parties that the Ford chassis taken to plaintiff 7>y Wilson was covered by the mortgage introduced by the defendant, but that the irorm-a-Truck attachment was attached after the execution of the mortgage. It was further shown that the mortgage to Harris was unpaid, and that Harris took possession of the Ford chassis with the truck attachment attached thereto, claiming it under his said mortgage, and before the bringing of this suit by the plaintiff the defendant purchased it from the mortgagee Harris. The defendant admitted possession of the property at the time of the bringing of the suit. The one assignment of error in this case is. the action of the court in giving the general charge for the plaintiff, and. that turns upon the question whether the attachment of the Smith Form-a-Truck attachment to the Ford chassis caused it to lose its identity in such sort as to place the title in the defendant. The law of accession in this country is not altogether clear, but this much may be said to be reasonably certain: When property-can be easily distinguished and separated, no change of property takes place, provided the separation can be made without injury to the thing attached. Alley v. Adams, 44 Ala. 609. In the single adjudicated case which we have been able to find in which the rule is undertaken to be stated, in a case similar to the one at bar, the court said, in substance (and without citation of, authority), that the ordinary repairs upon a personal chattel, such as new bolts, nuts, thills, and the like, became accretions to, and merge in, the principal thing, and become the property of the general owner. But wheels and axles constitute the running part of a wagon. They could be *153 followed, identified, severed without detriment to the wagon, and appropriated to other nse without loss. Clark v. Wells, 45 Vt. 4, 12 Am. Rep. 187. In the ease just above cited, tbe property involved was the axle and wheels of a wagon, which we think is not unlike the proposition here involved, and, following that case, we hold that the I<’orm-a-Truck attachment did not become the property of the defendant, and therefore the plaintiff was entitled to a verdict under the undisputed evidence. I! follows, therefore, that the court did not commit error in giving the general charge for the plaintiff as requested. Affirmed.