In response to the application for rehearing it may be said that there is analogy to be found in McGregor et al. v. Shipp,238 Ala. 221, 189 So. 740, as to mortgage foreclosure, if one of several installments is due although others are not, that an installment maturing in the future should be included in such foreclosure decree. It is admitted, however, that this is a rule applied under a bill for redemption from mortgage foreclosure. However, it illustrates the position of the plaintiff, voluntarily submitting himself by his proceeding in detinue to a statute authorizing the ascertainment of the purchase price and balance due on such a contract, whatever it may be called, whether a mortgage or a conditional sale contract.
The facts as stated by appellant, or the result thereof at the trial, were that the installments falling due on the 12th day of September, October and November, respectively, aggregating $618, were not paid; that the total amount paid by the county before suit was brought by appellant, the seller of the machine, was $1,424; that at said time the future installments, payable December 12, 1935, and January, February, March and April, 1936, would aggregate $1,030, that were not due; that the county was not in default as to such unmatured payments at the time suit was brought, and that the contract contained no acceleration clause. However, a fair construction of the contract in evidence and the evidence touching payments made thereon, impresses us that Section 7400 of the Code of 1923 would apply to a part of the debt not due at the time the suit was brought, and under such pleading can be put in issue to enable the county to make just compensation in the premises and retain the road machine in question. The statute sets up an equitable doctrine and the plaintiff is in no position to complain under the nature of the suit brought and the evidence touching the same, which shows the balance due on the purchase price. Such reasons, no doubt, impelled the trial court to grant a new trial on the motion of the county duly made and brought to the attention of the court.
The application for rehearing is overruled.
GARDNER, C. J., and BOULDIN and FOSTER, JJ., concur.