Ingersoll-Sergeant Drill Co. v. Worthington & Co. , 110 Ala. 322 ( 1895 )

MoCLELLAN, J.

This is an action of detinue prosecuted by Ingersoll — Sergeant Drill Co. against Worthr ington & Co, Defendant’s first plea was : “That they do not detain the property mentioned in plaintiff’s complaint.” This presented the general issue—non detinet—(Lucas v. Pittman, 94 Ala. 616); and is a denial of the wrongful detention averred in the complaint. There were also several special pleas. Some of these show that plaintiff bases its claim of title — and in this case it had to recover on title, if at all — on a contract-of sale to McNamara Bros, by the Phillips & Wiggs Machinery Co., wherein title to the property was reserved' to the sellers until the purchase money for the chattels was paid, which contract was transferred to plaintiff, and that said purchase money was paid or tendered before suit brought, and the tender kept good by a deposit in court. The trial was before the judge of the city court without jury. Without discussing the facts here, it will suffice as showing the grounds upon which we base our concurrence with the finding below to state the following conclusions :

1. That Wiggs was for all the purposes of this case the general agent of the Ingersoll — Sergeant Drill Co.

2. That as such agent he agreed and thereby bound said company to receive in full payment of the amount due it as purchase money of the property involved here a certain sum less than the whole to be paid by Moore & Cohen, trustees &c., out of the price to be paid them at stipulated times by Worthington & Oo. for this property and other effects then sold to the latter by McNamara Brothers.

3. That all of said certain sum was paid to plaintiff according to said agreement except about $480, and that this balance was duly tendered to plaintiff, and refused by it, and is now in court for the plaintiff.

4. That whether the contract of sale by the Phillip s & Wiggs Co. to McNamara Brothers be a conditional sale reserving title till purchase money paid, or a mortgage to secure payment of purchase money, the payment in great part and tender as to the balance of the sum agreed to be taken by plaintiff in payment for the property in suit, divested all title out of the plaintiff and vested an absolute title in the defendenfc. Hence no recovery could be had in this action.

Affirmed.