Jesse French Piano & Organ Co. v. Bradley , 138 Ala. 177 ( 1902 )

TYSON, J.

Action of detinue for a piano.

It is elementary that the gist of this action is -the wrongful detention. It is also elementary that the plaintiff must have the right to the possession of the chattel, at the commencement of the suit in order to recover.

The defense invoked by the special plea filed by defendant challenges the plaintiff’s right to the possession of the piano. It is true it shows a title in plaintiff to the piano, but it asserts the right of defendant to retain the possession of it until the money paid, and the organ delivered by defendant to plaintiff on account of the purchase is returned to him. It alleges a rescission of the contract of sale and an offer to return the piano to plaintiff, and a demand of the return of the money paid plaintiff, and of the organ delivered to plaintiff, and a refusal of that demand. It also contains an offer to deliver the piano at any time upon the restoration to him of the money, the organ, or its reasonable value, and the notes held by plaintiff, given by defendant for the balance of the purchase price of the piano.

In Jones v. Anderson, 82 Ala. 302, it is said: “When a purchase of property is made by one person from another by false pretense or other like fraud, the party defrauded may elect to rescind the sale within a reasonable time after discovery of the fraud. But there can usually be no rescission unless both parties can be restored practically to the condition in which they were before the contract was made. This involves the restoration of whatever of value each may have received under the contract.”

In Eagan Co. v. Johnson, Ib., 238, it is said: “If he (the purchaser) has acquired possession, he must tender it back within a reasonable time, unconditionally, if he has made no payment. • If he has made payment, total or partial, he may qualify the tender back, by a retention of possession until restitution is made. For this purpose and to this extent, the law allows him to retain the possession as a security.”

The court correctly overruled the motion to strike the plea and the demurrer interposed to it.

Affirmed.