Spinks v. E. E. Forbes & Sons Piano Co.

Supreme Court of Alabama

Spinks v. E. E. Forbes & Sons Piano Co.

22 So. 2d 334, 247 Ala. 20, 1945 Ala. LEXIS 334

CourtSupreme Court of Alabama

DecidedMay 24, 1945

Docket8 Div. 308.

StatusPublished

This text of 22 So. 2d 334 (Spinks v. E. E. Forbes & Sons Piano Co.) 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

Spinks v. E. E. Forbes & Sons Piano Co., 22 So. 2d 334, 247 Ala. 20, 1945 Ala. LEXIS 334 (Ala. 1945).

Pincite

Opinion

BROWN, Justice.

The defendant’s special pleas two and three — in confession and avoidance — were subject to some of the objections pointed out in the demurrer. They show that the defendant claimed title to the property through gift from her husband, and the averments of said pleas do not show that the husband had the title to the property, the subject of the gift. The title of the donee cannot rise higher than the title of the donor. 24 Amer.Juris., p. 731, §3.

The averments of said pleas do not bring the defendant within the protection of § 131, Tit. 47, Code 1940. Lynn v. Broyles Furniture Co., 3 Ala.App. 634, 57 So. 122; Gayle Motor Co. v. Gray-Acree Motor Co., 206 Ala. 586, 90 So. 334.

The defendant’s objections to the conditional sales contract as evidence were untenable. The fact that the contract was not recorded until within a few days before the suit was brought did not render it inadmissible as evidence, where its execution had been duly proven, and the retention of the contract by the plaintiff, and the acceptance of payments thereon, was sufficient approval. The contract did not require a written approval.

The evidence offered by the defendant to show title was to the effect that the property was presented to her by her husband as a Christmas gift, and that she had been in the continuous possession thereof from December 24, 1940, up until the trial, a period of less than six years. This was not sufficient to establish title in her, in the absence of evidence showing title in the husband. L. Grunewald Co. v. Copeland, 131 Ala. 345, 30 So. 878; Code 1940, Tit. 7, § 21, Subsection 3.

Nor is there any merit in the contention that the delivery of the property on the 24th of December, 1940, at the home of the prospective purchaser vested title in the defendant, his wife. The evidence shows that the delivery and installation were for the purpose of tests or trial and approval. Leigh v. Mobile & Ohio R. Co., 58 Ala. 165; Caffey v. Alabama Machinery & Supply Co., 19 Ala.App. 189, 96 So. 454; 46 Amer.Juris. p. 656, § 493. The objections to the evidence offered by the defendant were properly sustained.

The plaintiff was due the general affirmative charge which it requested in writing.

This disposes of all questions argued in brief.

We find no error in the record.

Affirmed.

GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

BROWN, Justice.

The defendant’s special pleas two and three — in confession and avoidance — were subject to some of the objections pointed out in the demurrer. They show that the defendant claimed title to the property through gift from her husband, and the averments of said pleas do not show that the husband had the title to the property, the subject of the gift. The title of the donee cannot rise higher than the title of the donor. 24 Amer.Juris., p. 731, §3.

The averments of said pleas do not bring the defendant within the protection of § 131, Tit. 47, Code 1940. Lynn v. Broyles Furniture Co., 3 Ala.App. 634, 57 So. 122; Gayle Motor Co. v. Gray-Acree Motor Co., 206 Ala. 586, 90 So. 334.

The defendant’s objections to the conditional sales contract as evidence were untenable. The fact that the contract was not recorded until within a few days before the suit was brought did not render it inadmissible as evidence, where its execution had been duly proven, and the retention of the contract by the plaintiff, and the acceptance of payments thereon, was sufficient approval. The contract did not require a written approval.

The evidence offered by the defendant to show title was to the effect that the property was presented to her by her husband as a Christmas gift, and that she had been in the continuous possession thereof from December 24, 1940, up until the trial, a period of less than six years. This was not sufficient to establish title in her, in the absence of evidence showing title in the husband. L. Grunewald Co. v. Copeland, 131 Ala. 345, 30 So. 878; Code 1940, Tit. 7, § 21, Subsection 3.

Nor is there any merit in the contention that the delivery of the property on the 24th of December, 1940, at the home of the prospective purchaser vested title in the defendant, his wife. The evidence shows that the delivery and installation were for the purpose of tests or trial and approval. Leigh v. Mobile & Ohio R. Co., 58 Ala. 165; Caffey v. Alabama Machinery & Supply Co., 19 Ala.App. 189, 96 So. 454; 46 Amer.Juris. p. 656, § 493. The objections to the evidence offered by the defendant were properly sustained.

The plaintiff was due the general affirmative charge which it requested in writing.

This disposes of all questions argued in brief.

We find no error in the record.

Affirmed.

GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

22 So. 2d 334, 247 Ala. 20, 1945 Ala. LEXIS 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spinks-v-e-e-forbes-sons-piano-co-ala-1945.

Opinion

Related

Cite This Page — Counsel Stack