44 So. 201 | Ala. | 1907
This is a suit in detinue by the vendor against the subpurchaser of an alleged fraudulent vendee of the plaintiffs for the recovery of a mule. The cause was partly tried on an agreed statement of facts, and, the evidence being without dispute as to the alleged fraud of the original vendee, the court, at the request of the plaintiffs in writing, gave the general affirmative charge to find for the plaintiffs.
It is evident that the general charge to find for the plaintiff was given upon the theory that the title to the property had never passed out of the plaintiff. The fraud consisted in a misrepresentation by the original vendee of his personal identity. The undisputed facts show that all of the terms of the sale were agreed upon between the plaintiffs and their vendee, and the possession of the property was delivered to the vendee, and his notes were taken for the purchase price payable to the plaintiffs, together with a mortgage to secure the same on the property sold. The adjudications of the courts on the question as to whether, under such a state of facts, the title to the property passed out of the vendors, are not in harmony. It seems, however, that the better established doctrine is that under such facts the title
The case of John Edmunds et al. v. Merchants’ Dispatch & Transportation Co., 135 Mass. 283, upon this question, seems to be directly in point. The principle also finds support in the following cases: Barker v. Dinsmore, 72 Pa. 427, 13 Am. Rep. 697; McCrillis v. Allen, 57 Vt. 505; Alexander v. Swachhamer, 105 Ind. 81, 4 N. E. 433, 5 N. E. 908, 55 Am. Rep. 180; Peters Box & Lumber Co. v. Lesh, 119 Ind. 98, 20 N. E. 291, 12 Am. St. Rep. 367; Rodliff v. Dallinger, 141 Mass. 1, 4 N. E. 805, 55 Am. Rep. 439. This principle is recognized in our own adjudications as to the question of farad and its effect in contracts of sale of goods. — Wilk v. Key, Simmons & Co., 117 Ala. 285, 23 South. 6, where other cases are cited. In the case before.us the evidence without dispute showed a sale of the property, in contradistinction to a mere parting of possession of it.
Our conclusion is that the trial court erred in giving the general charge for the plaintiff, and for this error the judgment appealed from must he reversed. The giving of the general charge constitutes the only assignment of error in the record.
Reversed and remanded.