64 So. 567 | Ala. | 1914
Action of detinue brought by appellee against appellant for an electric piano. Along with other defenses, defendant pleaded three pleas, which were intended (pleas 3 and 4) to show that plaintiff claimed title to the property in suit under a mortgage, and that the mortgage had been procured by the false and fraudulent representations of plaintiff or its agent, and (plea 8) that defendant had executed the mortgage under which plaintiff claimed title to secure the purchase price of a gasoline engine and dynamo which he had purchased from plaintiff, that plaintiff had retained the title to said engine and dynamo until the purchase price should be paid in full, and that, before the-purchase price fell due, and while the said engine and dynamo were in the possession of defendant, said property (engine and dynamo) was destroyed by fire without the fault or negligence of defendant. The court sustained demurrers to these pleas, and its action in each particular is assigned for error.
Plea 3 was a good plea, and the demurrer to it should have been overruled. — Moline Jewelry Co. v. Crew, 171 Ala. 415, 55 South. 144; Leonard v. Roebuck, 152 Ala. 312, 44 South. 390, and cases cited.
Plea- 4 was bad. The plea does not deny that defendant knew he ,was signing a mortgage, nor does it aver that plaintiff’s agent made any false dr fraudulent rep
We are not agreed as to whether plea 8 stated a sufficient defense in the peculiar circumstances of this case; and, in view of our conclusion to reverse upon other points, and the fact that it appeared in the uncontradicted evidence that in any event plaintiff had a perfect answer to this plea in the provision of each of the notes evidencing defendant’s indebtedness for purchase money as follows: “Should said property for which this note is given be lost, burned or otherwise destroyed before payment of this note, I nevertheless promise to pay the same.”- — thus obviating the difficulty raised by the doctrine of Bishop v. Minderhout & Nichols, 128 Ala. 162, 29 South. 11, 52 L. R. A. 395, 86 Am. St. Rep. 134, as was decided by the Court of Appeals in the recent case of Kentucky Wagon Co. v. Blanton-Curtis Mercantile Co., 8 Ala. App. 669, 62 South. 368, affirmed by this court on certiorari, we prefer to leave the precise question raised by the demurrer to this plea undecided for the present. If this plea shall remain upon the file, plaintiff will have opportunity to reply specially on the theory of Kentucky Wagon Co. v. Blanton-Curtis Mercantile Co., supra.
Defendant should have been allowed to show, under his plea denying his execution of the mortgage under which plaintiff claimed title, that the property in suit was not described in the mortgage at the time when defendant signed it; i. e., that the mortgage had been materially altered since his execution of it. — Lesser v. Scholze, 93 Ala. 338, 9 South. 273.
The matters involved in the proper pleas to which we' have alluded went to plaintiff’s title, and might have
For the erroneous rulings on the evidence, the judgment must be reversed.
. Reversed and remanded.