Statutory detinue for one Haynes automobile. Defense was made under the general issue. Judgment for plaintiff. Defendant appeals.
Plaintiff claimed title as remote assignee of a contract by which the Ewart-Brewer Motor Company sold the car in question to E. H. Posey, retaining title until the purchase money should be paid in full. The evidence showed a balance due of something over $800. This, with the possession acknowledged by the plea, made a prima facie case for plaintiff. Code 1923, § 7404. Defendant had bought the car from L. B. Cooper, who, October 27, 1923, had taken an assignment of the Ewart-Brewer contract, and to whom Posey had, on what consideration does not appear — but that is immaterial — surrendered the automobile. Two days later, October 29th, in pursuance of a contract entered into on October 24th, defendant accepted the automobile from Cooper and, by an agreement indorsed on the Ewart-Brewer contract, acknowledged the unpaid balance due on the purchase price to be $800, with interest, and agreed "that said [Ewart-Brewer] contract shall henceforth be a subsisting and binding one between the undersigned and L. B. Cooper as to all its terms just as though we were the original parties thereto." The effect of this transaction was to establish a contract between Cooper as vendor and Edwards as vendee on the terms of the Ewart-Brewer-Posey contract.
Defendant's main reliance on this appeal is that the trial court refused to admit in evidence an executory agreement in writing, *Page 158 of date October 24th, between himself and Cooper, by the terms of which defendant was within 5 days to convey a certain house and lot to Cooper in consideration of the sale to him by Cooper of the automobile in suit, defendant "to assume $800 first mortgage on Haynes automobile." The report of the case sets out the agreement. This agreement was executed on the part of defendant by his indorsement of October 29th on the Ewart-Brewer contract, to which we have referred. It is also to be inferred from the evidence that at some time he executed a deed to the house and lot as agreed.
Defendant's purpose, as appears from his brief, in offering the agreement of October 24th in evidence was to show thereby that title to the automobile had vested in him, and therefore there was no consideration moving to him for his subsequent indorsement on the Ewart-Brewer contract, and, as we gather from the brief, to show that the indorsement contract of October 29th, even if so intended, cannot be accepted as an execution of the agreement of October 24th, for the reason that the last-mentioned agreement provides for the assumption of a "first mortgage" on the automobile, whereas the indorsement contract evidenced the assumption of the burden of a so-called lease sale contract — conditional sale it is, with superadded terms. Barton v. W. O. Broyles Stove Co. (Ala. Sup.)103 So. 854.1 By both such contracts, viz. mortgage and conditional sale, the legal title is either retained or revested as a security for the purchase price. By the agreement, accepted by defendant as binding upon him, it was intended to bind him, upon his failure to pay any installment, to forfeit his purchase and all payments made, and, besides, to "mature the entire indebtedness and render all installments due and payable," which, it must be conceded, is somewhat more than the usual first mortgage. None the less, the agreement of October 24th was an executory agreement, as its terms clearly disclose, and the indorsement agreement adopting the contract of conditional sale — and dealing with the same subject-matter, necessarily — was, there appears not the slightest reason to doubt, the result of an intent to execute it. It follows that the agreement of October 24th was merged in the indorsement agreement of October 29th adopting the Ewart-Brewer contract, mutatis mutandis of course, as the contract between Cooper and defendant — this, notwithstanding the difference between the two — and the adopted contract became, so far at least as it concerned the rights and interests of the parties in the automobile in issue in this case, the exclusive memorial of the contract between the parties.
It is to be conceded that defendant, upon the performance of the obligations incurred by the agreement of October 24th, would have acquired a right to the automobile, but in pursuance of a previous undertaking he had entered into the indorsement agreement to assure Cooper of his rights. For the promise so evidenced the delivery of the automobile was a sufficient consideration, whether such delivery was made antecedently, contemporaneously, or subsequently, and, in the absence of fraud or coercion, that agreement became the conclusive memorial of the contract between the parties. The intention of the parties, as expressed on the face of the paper writings, together with the undisputed facts aliunde, made the question of merger a question for the decision of the court. The conclusion as to this reached in the trial court was in our opinion clearly correct. The agreement of October 24th was excluded without error for the reason that, having been merged in the later agreement of the parties, it was immaterial to any issue presented in the cause.
The court also properly denied all the numerous efforts of defendant by parol evidence to vary the terms of the adopted contract. In particular, it may be worth while to state there was no error in the exclusion of questions the apparent purpose and effect of which were to lay emphasis on an admitted fact, viz. that defendant had made a deed of his house and lot in part payment for the automobile, as if that were any sufficient reason in law why the contract, hard as it was, and, on the part of defendant, improvident to a degree, but still within the limits of the law, should not be enforced by the jury.
The fact that a contract under which a party claims is in writing does not in general preclude the admission of parol evidence of fraud or misrepresentation in its procurement or execution. Brenard Mfg. Co. v. Jacobs, 202 Ala. 7, 79 So. 305; Leonard v. Roebuck, 152 Ala. 315, 44 So. 390; Moline Jewelry Co. v. Crew, 171 Ala. 417, 55 So. 144; Nelson v. Wood, 62 Ala. 175. But the question asked by defendant, viz. "Did they [which may have referred to several persons present at the time] tell you this was a bill of sale?" hardly sufficed to invoke this rule. In a rude sort of way the paper referred to might have been called a bill of sale, but, apart from that, it is to be noted that, while defendant acknowledged that he had signed the paper in evidence, he did not deny, nor did counsel ask any question calculated to evoke a denial, that he had read the paper and was fully informed as to its contents. As for the other questions excluded, for example, "I will ask you [Cooper] this question: Is it not a fact that when you signed this contract — isn't it a fact that you didn't own the car?" and, "I will ask you, Mr. Cooper, if it isn't a fact that Mr. Crittenden [plaintiff], subsequent to the date you sold *Page 159 this automobile to Mr. Edwards [defendant] — if he didn't lend you the money to go down and purchase the legal title to this car from the Realty Mortgage Company in Birmingham?" the answers expected, whether designed to prove fraud or an outstanding title, could have availed defendant nothing.
If fraud was the idea, the defense so attempted was precluded by the fact that defendant had accepted possession from plaintiff's assignor and retained it. He could not be heard to offer evidence to rescind the contract while retaining the benefit of the same. Jones v. Anderson, 82 Ala. 302, 2 So. 911; Jesse French Co. v. Bradley, 138 Ala. 177, 35 So. 44. If the idea was to show an outstanding title, the ruling is to be justified on two grounds: (1) In an action of detinue, the defendant cannot set up an outstanding title in a third person without connecting himself with it (5 Mich. Dig. p. 71); and (2) the evidence proposed did not tend to establish an outstanding title; it tended merely to establish the title of defendant's assignor. The contest related exclusively to the respective merits of the right and titles claimed by plaintiff and defendant, and the evidence disclosed without conflict that defendant claimed under plaintiff's assignor. The only question at issue was whether defendant had forfeited the title so shown by a failure to comply with its conditions.
In view of the fact that the general affirmative charge was properly given for plaintiff, there is no occasion to discuss the special instructions refused to defendant.
We have found it impossible within permissible limits to discuss every turn given to the contentions advanced by defendant, appellant, in voluminous briefs; but all have been considered, and our statement has been framed with a purpose to dispose of contentions between the parties which seemed to merit discussion.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.
1 212 Ala. 658.