Greene v. Lewis

SOMERYILLE, J. The plaintiff’s right of recovery in this case depends on the inquiry, as to whether he had sold the horse in controversy to the defendant. If he had, he thereby parted with his title to the property, and could not recover in this action; otherwise he could. There is a phase of the evidence which not only tends to prove a sale, but tends also to prove that the price of the horse was left open for future adjustment between the parties. The rule is settled, that the title to personal property may pass to a vendee, without fixing an absolute price, if the circumstances [223] attending tbe transaction satisfactorily sbow such to be tbe clear intention of tbe contracting parties. — Shealy v. Edwards, 73 Ala. 175; s. c., 75 Ala. 411; Wilkinson v. Williamson, 76 Ala. 163. It is sufficient for the purposes of this case to decide, that tbe Circuit Court erred in refusing to give tbe third charge requested by tbe defendant. As tbe whole case turns mainly on tbe question, whether there was a sale of tbe horse at a price to be agreed on in tbe future, or on credit and for a quantum valebat, and this is rather a question of fact than of law, under proper instructions from tbe court, we will not notice the other charges. The judgment, being in detinue, should have been “for the property sued for, or its alternate value, with damages for its detention to the time of trial.” — Code, 1886, § 2719; Wittick v. Keiffer, 31 Ala. 199; Auerbach v. Blackman, 57 Ala. 616; Robinson v. Richards, 45 Ala. 354; 1 Brick. Dig. 577, §§ 99, 107-108; 3 Brick. Dig. 308, §§ 40 et seq. All mention of alternate value is omitted from the judgment, although specified in the verdict. We call attention to this error, that it may not be repeated on another trial. Beversed and remanded.