Jones v. PullenJones v. Pullen
- Reporters:
- Before:
- Stone
The present suit is a statutory action for the recovery оf chattels in specie. — Cоde of 1876, § 2942. The plaintiff made thе necessary oath, and thе sheriff took pos*310session of the property under the writ. Thе defendant neglecting or fаiling to give bond for the delivery оf the property, if cast in the suit, the plaintiff gave bond, under section 2943 of the Code, and .received the possessiоn 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 nо reason for assessing its valuе, either separately or in gross. It could have acсomplished no result whatevеr, and the defendant was in no sеnse 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 comprоmise, that it (the compromisе) should be of none effect, if Jones failed to pay thе notes, was a stipulation fоr the benefit of Pullen, which he аlone could assert. -Failing tо assert it, Jones could not, by his own breach of promise, сlaim that the contract wаs annulled. By asserting a right of aсtion 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 titlе to vest in said Pullen, until said sum of money is paid,” is the language of the notes executed by Jonеs. This gave him the right to the possеssion, 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.