Barnhill v. Howard , 104 Ala. 412 ( 1893 )

HARALSON, J. —

1. There was no conflict in the evidence as to what the contract between the plaintiff and the defendants was. Its terms and conditions were all certain. Its construction was, therefore, a question for the court and not for the jury to determine. — Jones v. Pullen, 66 Ala. 306; Guilmartin v. Wood, 76 Ala. 209; Foley v. Felrath, 98 Ala. 176, 181.

2. By the terms of the contract, the property purchased was identified, and its price and the terms of payment -were agreed upon — nothing remaining to be done in these respects. The property was delivered by the vendors into the hands of the vendee, and the contract of sale becoming executed, the title vested in him. If the animals had died, or in any manner been lost or destroyed,'before they were fully paid for, the plaintiff would not, thereby have been released from what he owed for them; the loss would have fallen on him .- Foley v. Felrath, 98 Ala. 176, and authorities there cited.

3. According to the terms of the sale, it was agreed, “that the oxen should stand good for themselves until they were paid for.” This was an attempt to create a verbal mortgage on personal property to secure a debt ■contracted for its- purchase price, the title having vested in the purchaser. It was void under the present statute, and could not defeat an action of detinue for the property of the vendee, when it was unlawfully taken from his possession by the vendor. — Code, § 1731; Jackson, Morris & Co. v. Rutherford, 73 Ala. 155; Jones v. Anderson, 76 Ala. 427.

The fact that it was agreed, when the trade was made, that Ellis Barnhill, one of the defendants, should be hired by plaintiff, “to drive the team and have possession and control of them until they were paid for, and was to drive them as long thereafter as they could agree,” and that plaintiff was to pay him a dollar a day for driving, is not to be taken as meaning that the property had not been delivered to plaintiff, but its possession and title were retained in defendants until paid for, but rather, that Ellis was to have possession and control of them as driver. He was driving them in the employment of plaintiff, at the time they were sold, and continued in this service afterwards under this agreement, until he voluntarily left the plaintiff’s service, leaving the oxen in his possession. The object of the stipulation was, evidently, to secure Ellis a continuation of service in the capacity of driver. The evidence showed, that all the defendants, after the trade, “worked for plaintiff, at so much per day, hauling with the oxen,” and establishes, beyond controversy, the possession by plaintiff of the oxen after his purchase of them. • '

4. The failure of the jury in rendering a verdict for plaintiff, to assess the value of the property, is not available to the defendants on errors assigned, since the plaintiff was in possession of the property sued for, under the necessary statutory boncj, the defendant, having failed to give bond and take possession of it. — Jones v. Pullen, 66 Ala. 306; Dykes v. Clarke, 98 Ala. 657.

5. The evidence touching the mortgage on the property, at the dnte of its purchase, was irrelevant to any issue in the case, but it was harmless. The general charge for the plaintiff was as proper without as with it.

6. The judgment as rendered, is effective only for costs against the defendants. The order, that execution might issue therefor against defendants and their ‘‘sureties on their appeal bond,” is without force, since there are no sureties on an appeal bond of defendants. It was plaintiff who appealed. This was an inadvertent mistake, and is without prejudice to any one.

Affirmed.