McGowin v. Dickson

62 So. 685, 182 Ala. 161, 1913 Ala. LEXIS 466

• Court: Supreme Court of Alabama
• Decided: May 15, 1913
• Status: Published

Opinions

de GRAFFENRIED, J.

The complaint as originally filed, and as it was amended before judgment was rendered thereon, has been by the reporter above set out. The complaint without the italicized portions is the original complaint, and is the only complaint which was ever served upon the defendant. The complaint with the italicized portions is the complaint as it existed after it was amended, and is the complaint upon which the judgment was rendered by default against the defendant.

1. Section 5301 of the Code of 1907 provides that “The summons must be executed by the sheriff or other officer in any county, by leaving a copy of the summons and complaint with the defendant, which fact he must return with the process.” The following is the only indorsement of the sheriff upon the original complaint in '¿this case: “Rec’d Sep. 7th, 1912, & on Sep. 9th, 1912, I served a copy of the within complaint on W. T. MeGowin/ [Signed] T. T. Palmer, Sheriff, by M. 1. Goldsmith, D. S.”

It is contended by appellant — defendant in the court below — that the above return does not show a legal service of the summons and complaint, and that therefore, as there has been no legal service, the trial court was powerless to enter up a valid judgment by default against the defendant. The statute says that the process may be executed by “leaving a copy * * * with the defendant,” and as the above return only, shows that the sheriff “served a copy” on the defendant, the defendant is of the opinion that the return does not show that he was legally served with the process. Says the defendant, for aught this court may know from the above return, the sheriff may have served the defendant by reading a copy of the summons and complaint to the defendant, instead of by leaving a copy with him, as required by the statute. In this contention we are not able to agree with appellant. The above return of the sheriff shows with sufficient certainty that he left a copy of the summons and complaint with the defendant. — Walker v. State, 52 Ala. 192.

2. The defendant did not appear in the case and when the day arrived for the trial of his case he made default. Thereupon the plaintiff, by leave of the court, amended his complaint, as indicated by the italicized words in the complaint above set out. No notice of any sort was given the defendant of this amendment, and on said day judgment by default was taken in said cause for the amount sued for in the complaint, and the interest. The judgment was rendered without the execution of a writ of inquiry.

3. It is contended by appellant that the cause of action set up in the original complaint is the breach of an executory — not an executed — contract of sale, and that therefore, if the plaintiff was entitled to recover anything of the defendant under the original complaint, the only thing he was entitled to recover was the damages which the plaintiff suffered by reason of the breach by the defendant of said executory contract. In other words, the appellant contends that on the case as made by the original complaint the measure of the plaintiff’s damages was the difference between the price which the defendant contracted to pay for the stock and the market value of the stock at the time and place of delivery, with interest, and that the plaintiff was not entitled to recover the full purchase price of said stock less the payment of $600, which the defendant had made thereon. There was no demurrer to the original complaint, and in passing upon this question the allegations of the complaint are not to be construed by us with exactness against the plaintiff, but with liberality towards him, but not Avith such degree of liberality as to give to the complaint a strained construction in the plaintiff’s favor. So construing the complaint, the question is not without some difficulty, but, so construed,_ we think that the original complaint shows with reasonable certainty that it was brought by the plaintiff to recover the balance due him on the purchase price on an executed contract of sale made by him of the stock in question to the defendant. A man who owns a part of the capital stock of a corporation holds the certificates merely as evidence of his ownership of the stock. As between the parties, a mere delivery of a certificate of the 'capital stock of a corporation, without more, is sufficient to pass the title of the stock from the vendor into the vendee if such delivery, was intended to operate as a transfer of the title to the stock from the vendor to the vendee. — Duke v. Cahawba Nav. Co., 10 Ala. 82, 44 Am. Dec. 472; Angell & Ames on Corporations (11th Ed.) § 564, p. 600.

In the instant case the particular 33 shares of stock which were the subject of sale were not, simply 33 unascertained shares of the stock of the English Carriage Company. The particular 33 shares covered by the agreement were as definitely ascertained by the agreement as if they had been a wellknown horse specially bargained for, with his price agreed upon and a part of the purchase money paid. The 33 shares of stock were the 33 shares which W. T. McGowin, on the 27th day of February, 1912, sold and delivered to A. E. Dickson for the sum of $5,940. While each share of the capital stock of the English Carriage Company was similar in all respects to every other share, the fact that a particular 33 shares of said stock were specificially made the subject of the agreement has its influence upon the question as to whether the transaction between the plaintiff and the defendant was an executed sale or only an executory agreement for a sale. A wholesale merchant might have 1,000 bolts of domestic identically similar in all respects. He might agree to sell to a retail merchant 100 bolts of that domestic at an agreed price, and the retail merchant might pay down 10 per cent, of the purchase money. If this contract was never executed it might be, with reason, asserted that only an executory agreement existed between the parties. If, however, when the trade was made a specific 100 bolts of that domestic had been segregated from the thousand bolts, and the negotiations had been confined to that particular 100 bolts and the price had been agreed upon, and one-tenth of the purchase price had been paid, then although the seller was left in possession of the goods, an entirely different question would be presented. “Where there is a sale of goods generally, no property in them passes till delivery, because until then the very goods sold are not ascertained. But when, by the contract itself, the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel, and to pay the stipulated price, the parties are in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee.”— Benjamin on Sales (7th Ed. [Bennett’s]), § 315, p. 268. “In Gilmour v. Supple, Sir Creswell Cresswell, in giving an elaborate judgment of the Privy Council says: ‘By the law of England, by a contract for the sale of specific ascertained goods, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such Aims not the intention of the parties.’ ” — Id., § 317, p. 269.

It therefore seems apparent that the original complaint counted upon an executed contract of sale, and that the breach of the contract therein set up Avas simply the failure of the defendant, in accordance with his agreement, to pay the balance of the purchase money. Under the allegations of the original complaint the plaintiff was entitled to recover the amount AAdiich the defendant had agreed to pay him for his stock, less the $600 paid thereon, and the interest. Under the allegations of the complaint as amended the amount of the plaintiff’s damages Avas the same amount — no more and no less — that he was entitled to recover under the allegations of the original complaint. The defendant suffered no injury by the allowance of the amendment, and on that account cannot be heard to complain.

4. Section 5325 of the Code of 1907 provides as folIoavs : “In actions upon penal bonds or other writings, for the nonperformance of any covenant or agreement contained therein, the plaintiff may assign such breaches as he may deem proper, and verdict and judgment may be rendered for the plaintiff for such of the breaches as he may prove; and if judgment be rendered for the plaintiff by default or nil dicit, a writ of inquiry of damages must be awarded. Judgment shall in no case exceed principal and interest due on the instrument.”

A writ of inquiry is a writ Avhich issues after judgment by default has been entered upon an unliquidated claim, and directs the jury “to inquire into the amount of plaintiff’s demand, and assess his damages.” — 40 Cyc. p. 2867, note. The damages growing out of the class of suits contemplated by the above statute are unliquielated damages, and for that reason it is necessary, and the statute requires, that a jury assess them.

Section 5356 of the Code of 1907 is as follows: “In all actions founded on any instrument of writing, ascertaining the plaintiff’s demand, if judgment by default, nil dicit, or on demurrer, be rendered for the plaintiff, such judgment may be entered up by the clerk, under the direction of the court, without the intervention of a jury; and the clerk must compute the interest, and, in case of a bill of exchange, the damages, if any be due thereon.”

The above statute dispenses with the necessity of a writ of inquiry in cases covered by it because the damages in such suits are liquidated — fixed by the contract sued on — and the intervention of a jury in such cases would be useless. In the instant case the writing ascertained the exact amount of the plaintiff’s demand.

While, if the defendant had appeared in court and pleaded the general issue, the plaintiff would have been required to prove the execution and delivery of the Avritten contract set up in the complaint, and would also have been required to prove, as a condition precedent to a recovery, that the defendant bought the stock as alleged in the complaint, all this proof became unnecessary Avhen judgment by default Avas rendered; and, as the Avriting set up in the complaint fixed with pertainty the amount of the judgment to Avhich the plaintiff Avas entitled, in this particular case a Avrit of inquiry would have performed a useless ceremony. The judgment by default fixed the right of the plaintiff to recoArer. The writing fixed the exact amount AAdiich the plaintiff was entitled to recover. The trial court therefore committed no error, for which the judgment in this case should be reversed, because of the fact that it failed to require a jury, under a writ of inquiry, to ascertain the amount of the plaintiffs damages.

The judgment of the court below is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.