Dembitsky v. Gamble

480 So. 2d 1219, 1985 Ala. LEXIS 4234
CourtSupreme Court of Alabama
DecidedDecember 20, 1985
Docket84-864
StatusPublished
Cited by1 cases

This text of 480 So. 2d 1219 (Dembitsky v. Gamble) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dembitsky v. Gamble, 480 So. 2d 1219, 1985 Ala. LEXIS 4234 (Ala. 1985).

Opinion

BEATTY, Justice.

Appeal by defendant Zenon Dembitsky from a judgment for plaintiff Alf Gamble d/b/a A G Associates (Gamble), in plaintiff’s action based upon breach of contract and conversion. We reverse and remand.

The action arose out of the sale of a Piper Aztec airplane sold by Gamble to Dembitsky, with Gamble taking as payment a promissory note executed by Jim Abercrombie. It appears that both Dem-bitsky and Gamble had had a number of business dealings with Abercrombie prior to the sale of the airplane and that they had such dealings subsequently. At the time of the sale, in fact, Abercrombie owed Gamble a considerable amount of money, between $25,000 and $50,000, and also owed Dembitsky a sum of money in excess of $67,500. Dembitsky was a licensed commercial pilot, who flew the Piper Aztec for Gamble, its owner. Gamble and Dembitsky agreed that Dembitsky would forgive $67,500 of the amount Aber-crombie owed him, and Abercrombie instead would owe Gamble that amount. Abercrombie acceded to this arrangement, then executed a promissory note payable in 30 days to Gamble for $77,625, representing the principal amount of $67,500 plus 15% interest. In addition, Gamble paid Dembitsky $7,500. Title to the airplane was transferred from Gamble to Dembit-sky. Gamble took Abercrombie’s promissory note in payment for the airplane, without retaining any security interest.

Gamble received four monthly interest payments from Abercrombie in the aggregate amount of $40,500 and never demanded payment in full.

When Abercrombie subsequently defaulted, Gamble filed his complaint against Dembitsky, alleging (1) failure of consideration; (2) conversion; (3) wrongful detention; (4) goods sold and delivered; and (5) breach of contract.

The case was tried ore tenus without a jury and resulted in a judgment for plaintiff for return of the airplane. Defendant’s motion for a new trial was denied, and this appeal followed.

[1220]*1220In its order, the trial court made findings of fact as follows:

“The Court finds that the sale of the airplane by plaintiff to defendant, payment of which was to be made by a third party, Jim Abercrombie, as evidenced by Abercrombie’s promissory note, was laced with deception and fraud on the part of Abercrombie, of which the defendant was aware and is therefore null and void. The Court makes its finding after considering the total aspect of the case and judging the credibility or non-credibility of the witnesses. The Court finds the credibility of defendant’s testimony slightly less than plaintiff, thus their testimony cannot be given equal weight.”

On appeal, the defendant contends that the trial court was in error in finding that the sale “was laced with deception and fraud on the part of Abercrombie, of which the defendant was aware and [the note] is therefore null and void.” Such a finding, it is apparent, was a finding that the purchaser, Dembitsky, defrauded Gamble by joining in the fraud. Cf. Jim Short Ford Sales, Inc. v. Washington, 384 So.2d 83 (Ala.1980).

Of course, it is axiomatic that the trial court’s decision in a case heard ore tenus will be affirmed if it is “fairly supported by credible evidence under any reasonable aspect, and is not palpably wrong or manifestly unjust.” Whitt v. McConnell, 360 So.2d 336, 337 (Ala.1978). Our review of the entire record convinces us that the judgment entered below was palpably wrong.

It was established by the testimony of both Gamble, the plaintiff, and Dembitsky, the defendant, that the promissory note of Abercrombie was the consideration for the sale of the airplane; that Gamble entered into this transaction voluntarily and knowingly; and that he never looked to Dembit-sky for an additional consideration until Abercrombie ceased payments on the note. Indeed, Gamble testified to his satisfaction with the deal until then:

“Q. In June of 1983, did you have an occasion to have a discussion with Mr. Dembitsky concerning the sale of your airplane?
“A. Yes, sir.
“Q. Would you please tell the Court the substance of that conversation.
“A. I had found another airplane that I would have preferred to have owned, and I offered to sell Mr. Dembitsky this airplane for sixty thousand dollars, originally.
“Q. And what did Mr. Dembitsky say?
“A. He came back and suggested that we make the sale price sixty-seven thousand, five hundred dollars, but that I rebate to him the seventy-five hundred dollars which was — which we did.
“Q. All right, sir. And was there any discussion at that time of Mr. Abercrom-bie buying the airplane?
“A. He was, in effect, paying for the airplane by tendering me a note in behalf of Mr. Abercrombie.
“Q. Mr. Dembitsky was?
“A. Yes, sir.
“Q. All right. Was there any discussion about any ownership of the airplane between you and Mr. Dembitsky by Mr. Abercrombie?
“A. Mr. Dembitsky and I agreed that Mr. Abercrombie couldn’t fly the airplane and that the airplane be titled in Mr. Dembitsky’s name. He made the transaction.
“Q. This note that has been marked and received into evidence, is this the piece of paper for which you paid?
“A. That’s correct.
“Q. And did you receive any money from Mr. Abercrombie after June of 1983 towards the purchase of the airplane?
“A. I received his interest of four payments of forward and four redated notes.
“Q. The note that is Plaintiff’s Exhibit Number One is a thirty-day note. The entire amount was due on July 30th, 1983. Is that correct?
[1221]*1221“A. Yes, sir.
“Q. When did he make his first payment to you?
“A. August the 1st.
“Q. He made four payments to you. Is that correct?
“A. I think so.
“Q. And did you get four new notes, or a new note each time?
“A. I’m sure I did.
“Q. Could you have demanded full payment at any time on each thirty days?
“A. It was represented that way, but we don’t know.
“Q. And did you demand full payment?
“A. No, sir.
“Q. Why did you not do that?
“A. That wasn’t the way the trade was made.
“Q. Is the way that the trade was made that you wanted to get this fifteen percent interest each month?

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Bluebook (online)
480 So. 2d 1219, 1985 Ala. LEXIS 4234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dembitsky-v-gamble-ala-1985.