Minchener v. Robinson

53 So. 749 | Ala. | 1910

SAYRE, J.

This was an action of detinue for the recovery of an electric motor; the case having originated before a justice of the peace. On appeal to the circuit court, the trial ivas had without a jury. Appellee was plaintiff in that court. Plaintiff and defendants had in some vaguely defined way been associated together in operating a small hardwood factory. The business was known as the “Minchener Hardwood Factory,” belonged to Mrs. Minchener, and was managed by Minchener. The motor in controversy was purchased from one Browder. There is hardly anything in the case, except an issue of fact as to whether the purchase was made by Robinson on his individual account, or by Robinson and the Mincheners on their joint account. As the evidence is stated in the bill of exceptions, there seems to be a slight preponderance in favor of appellee’s individual ownership. The trial court had advantages in the consideration of the testimony of the witnesses which we cannot have, and in this state of the case ive cannot disturb the finding.

Outside of the argument upon the general conclusion already stated, we find in the brief for appellants only tAvo suggestions of error. These will be considered.

1. When plaintiff bought the motor, he agreed to pay-1150 for it as soon as it was tested and found capable of developing 20 horse power. About a month later, a payment of $75 was made by plaintiff; the money being gotten from Minchener. Still later Minchener paid the balance of $75. On the trial before the justice of the peace, an itemized statement of the account between the parties had been produced, in which $75 was charged to plaintiff at the (late of the first payment. The statement also showed a balance of $75 in favor of plaintiff. Minchenor had kept the account, and the statement produced was in his handwriting. Plaintiff accounted for this method of payment by his testimony that the Mincheners were indebted to him, and agreed to furnish the money in payment and discharge of the indebtedness. The statement of account was received in the circuit court, not for the purpose of determining plaintiff’s right to recover on any equitable considerations which might arise out of a settlement of the account between the parties as partners, but as in the nature of an admission by defendant tending to corroborate plaintiff’s testimony and theory of the case. It was admitted without error.

2. On the appeal from the justice of the peace to the circuit court, defendant executed a supersedeas bond, with sureties. In the circuit court, judgment was rendered that plaintiff recover the property sued for or its alternate value of defendants and their sureties. It is now said that the judgment against the sureties was erroneous. — Rand v. Gibson, 109 Ala. 279, 19 South. 533, and Clem v. Wise, 133 Ala. 409, 31 South. 986, are cited. Both of these were statutory actions of detinue. The bonds were given to secure possession pending the suit, and were conditioned upon the failure to deliver the property to the successful party within 30 days after judgment. The procedure in such cases is provided for in section 3783 of the Code of 1907. The sureties against whom judgment in this case was rendered in the circuit court were parties to a bond of supersedeas on the appeal, and judgment was properly rendered in accordance with section 4725.

The judgment of the circuit court is affirmed.

Affirmed.

Dowdell, C. J., and Anderson and Evans, JJ., concur.