Jones v. Pullen, 66 Ala. 306

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66 Ala. 306 | Ala. | 1880

STONE, J.

The present suit is a statutory action for the recovery of chattels in specie. — Code of 1876, § 2942. The plaintiff made the necessary oath, and the sheriff took pos*310session of the property under the writ. The defendant neglecting or failing to give bond for the delivery of the property, if cast in the suit, the plaintiff gave bond, under section 2943 of the Code, and .received the possession of the property sued for. The .plaintiff was, therefore, in possession of the property when the cause was tried; and, succeeding in the action, there could be no reason for assessing its value, either separately or in gross. It could have accomplished no result whatever, and the defendant was in no sense injured' by the failure.—Miller v. Jones, 29 Ala. 174; Rambo v. Wyatt, 32 Ala. 363; Lucas v. Daniels, 34 Ala. 188; Rose v. Pearson, 41 Ala. 687.

2. The term of the agreement of compromise, that it (the compromise) should be of none effect, if Jones failed to pay the notes, was a stipulation for the benefit of Pullen, which he alone could assert. -Failing to assert it, Jones could not, by his own breach of promise, claim that the contract was annulled. By asserting a right of action under the substituted contract, Pullen elected to be bound by it.—Stone v. Gover, 1 Ala. 287; Bass v. Gilleland, 5 Ala. 761; Barbour v. Brookie, 3 J. J. Marsh. 512.

3. There is nothing in the objection, that plaintiff fails to show a right to maintain the present suit. “ The title to vest in said Pullen, until said sum of money is paid,” is the language of the notes executed by Jones. This gave him the right to the possession, and will support the present action.—Martin v. Reed, 11 Com. Bench, N. S. 730; Langton v. Waring, 18 Com. B., N. S. 315; Tucker v. Wilson, 1 P. W. 261; Roper v. Lane, 11 Allen, 571.

4. The third charge given .is objectionable in form, but it did no injury. The court ought to have construed the recital in the notes, as giving to plaintiff the right to maintain this suit, if the notes were not paid.—Taylor v. Kelly, 31 Ala. 59; Price v. Mazange, Ib. 701.

Affirmed.