Parker-Blake Co. v. Ladd

PELHAM, P. J. The case was tried on the evidence contained in an agreed statement of facts, which is set out in the bill of exceptions, from which it appears that the defendant in the original suit, one Rencher, had purchased from the appellant, the claimant in the trial court, certain goods, which were levied on by the appellee, the plaintiff below, under a landlord’s attach [410] ment for rent; that the goods were purchased on credit without any reservation of title in the seller; that at the time of the sale Rencher was in failing circumstances and had no reasonable expectation of being able to pay for the goods, and failed to disclose his financial condition to the seller, the appellant; that the appellant was entirely ignorant of Rencher’s condition, and “was induced to make the sale, owing to the aforesaid failure of the said Rencher to disclose his true financial condition”; that appellant did not ascertain the true financial condition of Rencher until just a few days before filing proceedings asserting its claim to the goods, but promptly upon ascertaining the facts the appellant had rescinded the contract of sale between Rencher and itself upon the ground of such failure of Rencher to disclose his said financial condition. The agreed statement of facts further showed that the goods sold by the appellant to Rencher were placed in the rented building where Rencher was conducting a retail drug store, and such of the goods as had not been disposed of by him, and were levied on, remained in the store until repossessed by the appellant under its claim bond, Rencher having defaulted in the payment of rent due appellee for the store, and judgment by default having been rendered against him; that, upon rescission by the appellant of the contract of purchase between it and Rencher, the goods were delivered by Rencher to the appellant, who packed them, but did not remove them from the store until after they were attached by the appellee for rent due by the defendant, Rencher. It is shown that the rescission was made prior to the levy of the attachment. (1) Under the agreed statement of facts the appellant had a clear right of rescission as between itself and Rencher (Maxwell v. Brown Shoe Co., 114 Ala. 309, 21 South. 1009; Pelham v. Chattahoochee Co., 146 Ala. 216-220, 41 South. 12, 8 L. R. A. [N. S.] 448, 119 Am. St. Rep. 19; Id., 156 Ala. 500-508, 47 South. 172), which it had exercised prior to the assertion by the appellee of his claim by the levy of his attachment. (2) The rescission by appellant against Rencher was good as against any other person not a bona fide purchaser from Rencher without notice.—Wollner & Lowenstein v. Lehman, Durr & Co., 85 Ala. 274, 4 South. 643. Appellee was not a bona fide purchaser without notice; he was the plaintiff in attachment seeking by the levy to fasten a landlord’s lien on the goods, and “a plaintiff in attachment levied does not thereby become a pur [411] chaser (Wollner v. Lehman, 85 Ala. 274, 4 South. 643), and can assert no claim as'such” (Barney Bank v. Pinckard, et al., 87 Ala. 577-582, 6 South. 364). To constitute the creditor a bona fide purchaser, he must have given up something of value so as materially to change his position.—Hawkins v. Dawson, et al., 182 Ala. 86, 62 South. 15. (3) Appellee being in no sense a purchaser whose title the appellant is estopped to deny as an innocent subpurchaser, but a lien-holder — a creditor with an inchoate lien — he acquired no better right as against appellant’s right of rescission, by levy of his attachment, than he had prior to the levy.—Wollner v. Lehman, supra. In other words, the appellee’s lien was not made paramount to the appellant’s right of rescission by an issuance of the attachment and levy of the writ. The appellant’s right of rescission antedated the inception of appellee’s lien; it existed from the time the sale was made. The appellee’s lien as landlord attached only to the goods belonging to the tenant (Rencher), and, Rencher’s title being subject to rescission on account of the fraud practiced in acquiring them, the appellee acquired no absolute right to a lien on the goods that was not subject to appellant’s prior right of rescission unless the appellant was estopped to assert its right against the appellee’s lien, and under the facts set out in the agreed statement no principle of estoppel is involved. The appellant having a clear right under the agreed statement of facts to rescind, and having rescinded the sale, the rescission was good as against any one not a bona fide purchaser for value without notice; and, the appellee not being a purchaser, but merely a creditor with a lien not superior to appellant’s right of rescission, the court was in error in rendering judgment in favor of appellee, and should have rendered judgment for the appellant on the agreed statement of facts before it. (4) The appellee is in no position to question the appellant’s right of rescission, and that, in fact, a rescission was actually effected, when the statement of facts agreed by the parties, and upon which the case was tried, states in positive terms that, as a matter of fact, the sale between appellant and Rencher was rescinded, and the appellant put in possession of the goods rémaining unsold by Rencher. The agreement between the parties that a rescission was had carries with it all the necessary preliminary requisites upon which to base the action and all acts necessary to [412] that end; and the appellee cannot now-be heard here on review in denial of his agreement, upon which the court below tried the case, that there was, in fact, a rescission effected between these parties. When a submission is on an agreed statement of facts, the parties are estopped to deny the truth, competency, or sufficiency of any admission made. — 38 Cyc. 1934b. Moreover, the agreed statement of facts shows all the necessary elements of fraud existing at the time of the sale authorizing a rescission under the decisions of this state.—Maxwell v. Brown Shoe Co., supra; Pelham v. Chattahoochee Co. (two cases), supra. (5) There is no merit in the contention that the bill of exceptions does not purport to set out all the evidence. The trial was had on an agreed statement of facts, and the trial court had no authority to receive additional evidence.—Wilcox v. San Jose Co., 113 Ala. 519, 21 South. 376, 59 Am. St. Rep. 135. It is not to be presumed that the court erroneously admitted evidence that it had no authority to admit. The bill of exceptions states that the cause was tried on the agreed statement of facts set out in the bill of excepions, and it is sufficient if the bill states that the case was tried on the evidence set out.—Baker v. Graves, 101 Ala. 247, 13 South. 275. (6, 7) The decision or conclusion reached on an agreed statement of facts is made upon the facts actually stated without drawing inferences of fact, except those necessarily drawn as a matter of law. The statement of facts itself is equivalent to a special verdict, and the proper judgment thereon is a mere conclusion of law.—38 Cyc. 1934, 1935. The agreed- statement contained no disputed facts. The facts were all agreed upon and set out in the statement. They were equivalent to a special verdict, and there was no conclusion to be reached by the court on the facts. It had only to arrive at a conclusion of law on the agreed facts. The only exception necessary to reserve to properly present the question for review was 'an exception to the conclusion of law reached by the court, evidenced by the judgment in the case. Such an exception is shown by the record to have been duly and regularly reserved to the judgment of the court on the agreed statement of facts, and the authorities cited by appellee holding that the bill of exceptions must show the conclusions and judgments of the lower court, and an exception reserved to both to authorize a review here, are not applicable and have no room for operation where, as here, there is no conclusion [413] to be drawn by the lower court other than a conclusion of law, or the judgment rendered on the agreed facts. In accordance with our holding, the judgment of the lower court in favor of the appellee (plaintiff) is reserved, and a judgment here entered in favor of the appellant (claimant). Reversed and rendered.