Smith Fay v. Montgomery Ward Co. , 209 Ala. 317 ( 1923 )

The main action was commenced by a complaint filed December 17, 1919, and in aid of the suit, defendant having left this state, writ of attachment was issued at the suit of Smith Fay, plaintiffs, against R. L. Cox, which was levied upon a player piano. Montgomery Ward Co., a nonresident corporation, intervened as claimant of the player piano. The court, trying the case without jury, rendered judgment in claimant's favor. The plaintiffs made a motion for new trial. The court overruled this motion; and from the action of the court in overruling the motion for new trial the appeal is prosecuted.

The claimant is a "mail order house." The defendant Cox signed at Prattville, Ala., and forwarded to the home office of Montgomery Ward Co. in Chicago, Ill., the order (a printed form employed in the claimant's business), the material parts of which read:

"Date Jan. 11, 1919.

"Montgomery Ward Co., Chicago — Gentlemen:

Piano Number 267D6054

"You may ship me Player Piano

{ Mahogany } Finished in { Walnut } Price $465.00, for { Oak } 30 days' trial.

"If at the end of thirty days I decide to buy the instrument, I will send you the amount of the freight charges you will have paid to ship it to me, together with a first payment of $10.00, and I will pay you $8.00 on piano each

$12.00 on player piano

month, without interest, until the instrument is paid for in full; then it becomes my property.

"If at the end of 30 days' trial I decide that the instrument is not satisfactory, I will notify you to send me shipping papers for its return at your expense for freight charges."

It is agreed that of the purchase price ($465) Cox paid about $97. It was further agreed that upon the receipt of the order by the claimant in Chicago, Ill., the claimant shipped the instrument to Cox at Prattville, Ala., as stipulated in the order. It appears without dispute that Cox exercised his unfettered option to buy the instrument within the 30-day period stipulated in the order.

It is clear, we think, that the phrase in the order signed by Cox, viz. "then it becomes my property," was intended to leave the title to the instrument in Montgomery Ward Co. until the purchase price was fully paid by Cox according to the stipulation of the order. The word "then" refers, unmistakably, to the condition of full payment. No other possible effect can be accorded the quoted phrase in the relation it is employed. To attribute to that phrase any other effect would require wholly unwarranted change in the language manifesting the intent of the parties. The character of the contract thus made by the parties was that of conditional sale; the title to the chattel remaining in the seller until the purchase price was fully paid.

This was an Illinois contract. The order, signed by Cox in Alabama, was addressed to the company in Chicago, Ill. It was accepted in Chicago, Ill. The subject of the conditional sale was delivered to the carrier in Illinois, for transportation to Cox, the freight charges to be paid by Cox if he elected to buy the instrument after "30 days' trial." He so elected; and he thereupon became obligated to reimburse the company the freight charges paid by the company. The delivery of the instrument to the carrier at Chicago was not intended and did not operate to qualify or to contradict the terms of the agreement, the accepted order, wherein the title was retained by the company. Any more than such delivery to the carrier operated to impose other terms or contractual effects upon Cox than the order stipulated. Such delivery was in view of and under the stipulations of the order, not in qualification or refutation of those terms. It results that the contract between Cox and Montgomery Ward Co. was not made in Alabama; was not an Alabama, but an Illinois, contract. This contract not having been made in Alabama, Montgomery Ward Co., a foreign corporation, did not offend Alabama's statutes (Code, § 3642 et seq.) declaring unlawful the engaging in or transacting of business in Alabama without complying with Alabama's statutes governing the conduct of business in this state by foreign corporations.

There is no suggestion that the contract was invalid where made. There is, of course, nothing in Alabama's statutes relating to foreign corporations undertaking to render void contracts made in other jurisdictions. The title to this chattel having been validly retained until the purchase price and freight charges were fully paid, the claimant, a foreign corporation, could not be denied the right to intervene as claimant in the courts of Alabama to protect its title to the chattel in an action by a creditor against the claimant's vendee.

The motion for new trial was properly overruled.

Affirmed.

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