Minge & Co. v. Barrett Bros. Shipping Co.

65 So. 671 | Ala. Ct. App. | 1914

WALKER, P. J.

The defendant’s second and third pleas plainly make it appear that the only claim the plaintiffs (appellants here) have to the personal property sued for rests upon the existence of a contract between them and the defendant, whereby the latter agreed to forfeit that property, which belonged to it and remained in its possession, if it did not at a specified time retire a described draft drawn by it and accepted by the plaintiffs. The contract described in this plea was not a legal mortgage of the chattel, as it did not purport to transfer the legal title. It was not a pledge, as the defendant, the owner of the property, retained possession of it. — Jackson, Morris & Co. v. Rutherford, 73 Ala. 155; Sims v. Canfield, 2 Ala. 555; Palmer v. Mutual Life Ins. Co., 23 Ann. Cas. 962, note. It was not a sale, as there was no delivery, and the ownership of the property mentioned remained in the party who was the owner before the contract was made. —24. Am. & Eng. Ency. of Law (2d Ed.) 1022, 1045; 35 Cyc. 27. The terms of the contract furnish evidence of the absence of an intention to make a sale of the barge. It recited that the barge was then valued by the defendant at $1,200. This recital is hardly compatible with the existence of an intention to effect a sale of it, either conditional or unconditional, for $500, the amount of the draft accepted by the plaintiffs. The purpose of the parties as evidenced by the terms of their contract was, not to sell a $1,200 barge for the consideration of a $500 liability, but, by the defendant’s agreement to forfeit the barge if it failed to retire the draft at maturity, to afford protection to the plaintiffs against the liability incurred by them by their acceptance of that paper. Whatever right the plaintiffs had when the suit was brought rested upon an executory contract which then remained unexecuted. They had only the defendant’s agreement to forfeit the barge on its failure to retire the mentioned draft at maturity (which failure had occurred when the suit was brought) an agreement for a future change of ownership (that the plaintiffs should have the barge if the defendant failed to meet an obligation to accrue after the contract was made). When the suit was brought, there had been no alienation or transfer of the chattel sued for. The legal title to it had not vested in the plaintiffs, and they had not acquired possession. If they had any title at all, it was an equitable one, created as a result of considering that as done which had been agreed to be done. One who has not, at the time of the commencement of his suit, acquired either possession of or the legal title to a chattel, is not entitled to maintain the statutory action of detinue for it. A mere equitable title or a right resting on an unexecuted executory contract does not entitle one to maintain such an action. —Alabama State Bank v. Barnes, 82 Ala. 607, 2 South. 349; Wetzler v. Kelly & Co., 83 Ala. 440, 3 South. 747; Reese v. Harris, 27 Ala. 301; Grant v. Steiner, 65 Ala. 499; Columbus Iron Works Co. v. Renfro Bros., 71 Ala. 577. We are referred to the court’s expression of approval in the opinion rendered in the case of Pilcher v. Faircloth, 135 Ala. 311, 33 South. 545, of a statement to the effect that, when a. statute provides for a forfeiture to the government of specific property upon the commission of a certain act, the forfeiture takes place immediately upon the commission of the act, although the title of the government is not perfected until there has been a judicial condemnation. It does not follow from that ruling that a transfer of title is effected by the mere happening of the event which the owner of property had, by an executory contract, agreed should cause a forfeiture of it. Neither the agreement nor the happening of the future event mentioned in it operates as a legal transfer of the owner’s right or title to the property. If a contract to sell, or for the future divestiture of the title of the owner of a chattel, is broken, the legal remedy of the party whose right is adversely affected by the breach is a personal one against the other party to the contract. — 35 Cyc. 27, 612; Cobbey on Replevin (2d Ed.) § 289. The contract relied on by the plaintiffs in the instant case cannot be construed as effecting a legal transfer of title or change of ownership. The agreement to forfeit the barge if the draft was not retired at maturity amounted to a mere promise to give it up, to deliver it, or let the plaintiffs take it if such failure occurred. This was not a mortgage, a pledge, or a sale, but at most an executory mortgage, pledge, or sale contract.- — Huntington v. Sherman, 60 Conn. 463 22 Atl. 769. The promise or undertaking of an owner of property, tlie ownership and possession of -which he retains, to forfeit or give it up upon his failure to do something in the future, does not confer title upon the party contracted with, but creates an obligation in the latter’s favor, for a breach of which he may maintain an action on the contract. In the brief of the counsel for the appellants references are made to rulings on contracts containing provisions for the forfeiture of specified things, in some of which the provision was determined to be one for a penalty and in others to be one for liquidated damages.- — Eakin v. Scott, 70 Tex. 442, 7 S. W. 777; Womack v. Coleman, 89 Minn. 17, 93 N. W. 663; Pogue v. Kaweah Power Co., 138 Cal. 664, 72 Pac. 144; Garvin v. Penn Furnace Co., 186 Mass. 405, 71 N. E. 793 ; Carson v. Arnantez, 10 Colo. App. 382, 50 Pac. 1080. Whether the party breaching the contract has become bound to forfeit or give up the thing named as a penalty or as liquidated damages, the legal right accruing to the other party as a result of the default is to be asserted, not in an action of detinue, but in an action for breach of the contract.

The averments in each of the pleas mentioned of facts other than those showing the plaintiffs’ lack of right to maintain the action did not impair the legal effect of the state of facts last referred to or render the pleas subject to the demurrers interposed to them. The court did not err in overruling the demurrers to those pleas.

The special replications, in setting out the contract between the parties in luec verba, did not show that its legal effect was other than was shown by the averments of the pleas replied to, and did not aver any other or different state of facts having the effect of conferring upon the plaintiffs a right to maintain the action. As the pleadings as a whole disclose a lack of right in the appellants to maintain the action, they could not have been prejudiced by any rulings made on those pleadings; and a more detailed review of those rulings is not deemed necessary.

Affirmed.