State Ex Rel. Elmore v. Leveson, 3 Div. 563.

3 Div. 563. | Ala. | Jun 8, 1922

This is a proceeding, by the state, on the relation of the city attorney of Montgomery, to condemn an automobile that was seized by the police of the city while being employed in the transportation of forbidden liquors. The contest was instituted by Stallworth Motor Car Company, a partnership, who claimed under a conditional sale contract (retention of title until purchase price was paid) executed to claimants by H. and M. Leveson. The trial court condemned the interest of the Levesons in the automobile, but sustained the claim of claimants to the extent of the unpaid balance of the purchase price of the car, ordering sale accordingly.

The conditional sale of the car to the Levesons by Stallworth Co. was consummated on Saturday afternoon, February 11, 1922. The seizure of the car by the police was made Sunday afternoon, February 12, 1922. The instrument in question was filed for record in the probate office of Montgomery county at 10 a. m., Monday, February 13, 1922, subsequent to the seizure. It appears from the testimony, complemented by the form of conditional sale agreement signed by the Levesons, that such agreements were, according to the general practice, assigned or transferred by the seller, this claimant, to the "Commercial Credit Company, Inc., New Orleans, La., without recourse." A blank form for this purpose was thus completed in this instance:

"Ford Dealer Indorse Here. "For value received pay to the order of Commercial Credit Company, Inc., New Orleans, La., without recourse. [Signed] Stallworth Motor Car Co. [Seal.] Dealer, by C. W. Corley, Cashier."

Evidently, this indorsement was made on February 11, 1922, though it is not separately dated.

During the trial, after the writing had been introduced in evidence by the claimants, the state took the point, in effect, that the quoted assignment or transfer had divested, at the time of seizure, Stallworth Co. of any right to or title in the automobile, investing the assignee or transferee with all the right, title, or interest of Stallworth Co.

In the brief for the state (appellant) it is urged that the parol evidence to be indicated was inadmissible to contradict, alter, or vary the assignment quoted ante. No such objection to the parol evidence was taken on the trial; hence that question is not presented on this appeal. This parol evidence was designed to show that the credit company retained the right to accept or to reject such assignments; that the act of Stallworth Co. in executing the transfer (on the form provided as stated) was not the consummation of an assignment of the rights of Stallworth Co., operating to divest the right or title of claimants and invest the credit company with it. Pending the discussion of this question — thereby making an issue of fact upon the perfected efficacy of the assignment thus to divest the right or title of Stallworth Co. — the credit company appeared by counsel and avowed the entire absence of any right or interest consequent upon the apparent assignment of the instrument. If the credit company had the option to accept or to reject the transfer of this instrument, it was essential that the evidence show an acceptance by the credit company before it could be affirmed that the right or title of the claimants passed to the credit company; and so, notwithstanding the act of the claimants in filing the instrument for record, with the quoted assignment indorsed thereon, two days after its execution and one day after the seizure of the car by the police. The trial court saw and heard the witnesses, with the whole instrument also in evidence. On the entire evidence it cannot be held that error affected the court's conclusion that the assignment had not become so consummated as to divest the right or title of the claimants at the time of the seizure of the car.

The other objection taken to the feature of the decree establishing the right of the claimants is that the claimants, conditional vendors, were not shown to have exercised the diligence required in ascertaining, before the delivery of the car to the conditional vendees, that the car was not to be used in the unlawful transportation of prohibited liquors. The applicable rules of law in this regard were stated in Flint Motor Co. v. State, 204 Ala. 437" court="Ala." date_filed="1920-06-30" href="https://app.midpage.ai/document/flint-motor-car-co-v-state-3226437?utm_source=webapp" opinion_id="3226437">204 Ala. 437, 85 So. 741" court="Ala." date_filed="1920-06-30" href="https://app.midpage.ai/document/flint-motor-car-co-v-state-3226437?utm_source=webapp" opinion_id="3226437">85 So. 741. The evidence discloses no inquiry by the claimants as to the character, habits, or reputation of the Levesons with respect to their participation in the illegal traffic in such liquors. The only inquiry shown to have been made was as to their financial reliability or responsibility and, most generally, as to them as a "moral risk." The places of business of the claimants and of the Levesons were less than a city block apart, in the immediate neighborhood. It is manifest from the whole evidence that even a moderate degree of diligence of inquiry would have discovered to the claimants facts and circumstances (including the reputation of these parties as "bootleggers") that would have enabled the claimants to avoid the imputation of negligence in the premises. Flint Motor Co. v. State, supra; Gen. Acts, 1919, pp. 13, 14, § 13. Discussion of the evidence in detail would serve no purpose. The decree, in so far as it sustained the claim of Stallworth Co., is reversed. In other respects it is affirmed. The cause is remanded for the entry and execution of a decree condemning, without qualification, the car described in the petition. Affirmed in part, in part reversed, and remanded with directions.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.