Tanner & Delaney Engine Co. v. Hall

STONE, C. J. We think the Circuit Court erred in excluding from the jury that part of the witness Butler’s testimony, which purports to give the contents of the correspondence between him and Hall. The plaintiff proved enough — laid a sufficient predicate — to let in secondary evidence.—Foster v. State, 88 Ala. 182; Bogan v. McCutchen, [630] 48 Ala. 493; Donegan v. Wade, 70 Ala. 501; Pensacola R. R. Co. v. Schaffer, 76 Ala. (233; Marvin v. Brown, 75 Ala. 442. The notes sued on were given as purchase-money for an engine, mill and fixtures, which were delivered to the purchasers. In the body of the notes, it was “agreed that the ownership and title of the said machinery remains in said Tanner & DeLaney Engine Company until this note is paid.” Plaintiff sued out an attachment against Hall & Mobley, the apparent makers of the notes, and had it levied on the engine, mill and machinery, as the property of Hall & Mobley, This was in the State of Elorida, where the machinery was situated. Under this proceeding, the property was sold, and the plaintiff became the purchaser at something less than five hundred dollars. There was proof tending to show that the engine and machinery were worth more than they sold for, and the plaintiff subsequently sold them at a price considerably above the sum for which he purchased them at the attachment sale. The main question of contest in this case is, whether the makers of the notes are entitled to a credit for the increased price obtained by plaintiff, in the re-sale of the engine, mill and fixtures. The retention of title by the seller is a clause of the contract inserted for his benefit. It is, at most, a form of security for the payment of the purchase-money. It is not absolute ownership; for payment of the debt, or tender within a reasonable time, kept good, would devest- the seller’s title. So far as the rights of the purchasers were concerned, they were the owners of the property, subject only to the right and option of the seller to assert his reserved title,, and the security it afforded. He alone could assert this, and he had the equal right to waive it, and treat his claim as an ordinary debt of the purchasers. And in the exercise of this option, he was entirely independent of any control or wish the purchasers could assert or make known.—Woolridge v. Holmes, 78 Ala. 568, and authorities collated; Sumner v. Wood, 77 Ala. 139. The attachment in Elorida, and sale under it, were an election to treat the property as belonging to the purchasers, and not to assert the title and lien reserved in the seller. If a stranger had purchased at that sale, there can be no question that he would have acquired a good title, and the Tanner & DeLaney Engine Company would have been estopped from asserting its lien, or reserved ownership. [631] The plaintiff had an equal right to purchase, and acquired an equally good title by its purchase. The defendant was not entitled to the increase of price realized on the re-sale, any more than he would have been required to suffer the loss, if the property had been destroyed subsequent to the sale, or could not have been re-sold except at a loss. This rule, however, applies only to personal property, the title to which may pass without writing. A different rule obtains when title to real estate is retained as security.—Powell v. Williams, 14 Ala. 476. Several charges of the court are in conflict with the views expressed above. Beversed and remanded.