Sawyer v. Ware

36 Ala. 675

• Court: Supreme Court of Alabama
• Decided: June 15, 1860
• Status: Published

Opinion

A. J. WALKER, C. J.

A judgment in the suit of a purchaser of personal property, with a warranty of title, is evidence as to the seller, when the title derived from the latter was in controversy, and he had notice of the suit. — Mahone v. Yancey, 14 Ala. 395; Dupuy v. Roebuck, 7 ib. 484. Only two questions, in reference to the plaintiff’s title, could arise upon the facts in this case; and those questions are, whether a sale was made; and if it was made, whether it was valid. The former of those questions brings into controversy the making of the sale, and not the quality of the title derived by a sale; and no judgment, consequent upon the decision of that question, could affect the seller. Neither, in our opinion, would a judgment, in a suit where the controlling question was fraud in the sale, be evidence against the seller. The purchaser is not legally entitled to indemnity from his vendor, for injury resulting from a fraud, in which both participated. In a suit against his vendor, the parties would stand in pari delicto, and the law would not lend its aid to the purchaser. — Gardenier v. Tubb, 21 Wend. 171; Rea v. Smith, 19 Wend. 294; Seymour v. Beach, 4 Verm. 493; Warner v. Percy, 22 Verm. 155; Bailey v. Foster, 9 Pick. 139. The decision in Nichols v. Patton, (18 Maine, 231,) which is opposed to those above cited, bases the conclusion, that the vendor is liable on his warranty for injury sustained by the'purchaser in consequence of fraud, upon the doctrine, that a fraudulent deed is good between the parties. The inference in that case from the premises is incorrect. 'Because a deed is valid inter partes, it does not follow, that a party may set up his own fraud for the purpose of showing a breach of warranty. The judgment in this case, if against the plaintiff, would not have been evidence against his vendor; and so, if in favor of the plaintiff, it would not have been evidence in favor of the vendor. The witness was, therefore, not incompetent on ac'count of interest, under the rule set forth in section 2302 of the Code. — Harris v. Plant, 31 Ala. 639.

The decisions in Prewit v. Lowry, (1 Porter, 101,) Burns v. Taylor, (3 Porter, 189,) and Holman v. Arnett, (4 Porter, 64,) were made long before the adoption of the Code, and not in reference to the rule now governing the question of incompetency for interest. We shall not inquire, whether the conclusion which we have attained is consistent with those decisions; for we can make no other decision than that which we have announced, without marring the system which we are endeavoring to build up under section 2302 of the Code. We think it much more important to apply with accuracy the rule given by the legislature in that section, than that we should follow the decisions referred to by the counsel.

[2.] Section 2290 of the Code declares the transferror of a contract to be incompetent as a witness for the transferree, suing upon the contract, to prove the cause of action, except in the cases, and under the restrictions therein specified; and before the adoption of the Code, it was held in numerous cases in this State, that the transferror of a chose in action was an incompetent witness for his transferree,. to prove the cause of action transferred. Neither under the Code, nor under the rule announced in those cases, was the witness in this case incompetent; for he was not the transferror of a contract or chose in action, but, if he transferred anything, it was a chattel in possession. — Kirksey v. Dubose, 19 Ala. 43; Robinson v. Tipton, 31 ib. 595; Clifton v. Sharpe, 15 ib. 618; Powell v. Powell, 10 ib. 900; Locke v. Nolen, 11 ib. 249; Houston v. Prewit, 8 ib. 846; Powell v. Powell, 7 ib. 582; Maury v. Mason, 8 Porter, 211, 232.

[3.] The contract as proved was,that the plaintiff should have the manufactured iron as fast as it was made, until he was paid for advances in money and provisions to the amount of eight or twelve hundred dollars, and also for a certain proportion of rent. This was a contract of sale, within our statute of frauds. It is often extremely difficult to distinguish between executory contracts for the sale of articles to be manufactured, and contracts for the labor and skill of manufacturing. The authorities are conflicting, and some of them make distinctions much more nice than practical or useful. Without going into a collation of the authorities, we think we may safely decide, that the contract in this case was for the sale of manufactured iron, and not for the work and labor bostowmd in manufacturing it. — Cason v. Cheely, 6 Geo. 554; Browne on the Statute of Frauds, §§ 301-310; Smith on Con. 75, n. 1; 2 Story on Con. 1015, ee.

The purchase here is of iron, in value sufficient to discharge the specified debts; and the amount of those debts exceeds two hundred dollars. There was, therefore, a sale of chattels, for a price exceeding two hundred dollars, (Browne on Stat. of Frauds, 313;) aiidthe fifth subdivision of section 1551 of the Code requires such a contract to be in writing, unless the buyer accepts and receives part of the thing sold, or pays a part of the purchase-money. The contract in this case was not accompanied by an acceptance of any part of the chattels sold. The price was to be paid by crediting the debts of the purchaser on the seller. The agreement so to discharge the purchase-money was not a payment. The point is correctly so ruled, in Walker v. Nussey, 16 Mees. & Wels. 302.

[4-5.] The court erred in charging the jury, that the •title to the iron vested in the plaintiff as soon as it was made. But as soon as a delivery of the iron, or any part of it, was made, the title vested in the purchaser. The statute of frauds prevents the enforcement of a contract, not evidenced according to its requirements, but does not prevent the voluntary execution of a contract, or annul it when executed, although it may have been made in a manner not conformable to the statute. — Smith on Contracts, 65; Browne on Statute of Frauds, §§ 114,115,116. Therefore, if there was a delivery to the plaintiff, of the iron which is the subject of the controversy, the plaintiff’s title would vest; but, if there was a valid execution in the hands of the sheriff of the proper county, against the seller, during the interval between the manufacture of the iron and its delivery, the execution creditor would acquire a lien upon it before the title vested, and the title would be postponed to the lien of the execution, and the sheriff would be justified in levying the execution upon it.

Judgment reversed, and cause remanded.