Motor Sales Corporation v. Wisdom
Motor Sales Corporation v. Wisdom
Opinion of the Court
This is an appeal from a judgment recovered by appellee against appellant ip an action of trover for the conversion of one Maxwell roadster automobile.
Defendant, as we gather from this record, was engaged in the repair as well as the purchase and sale of automobiles, particularly the Maxwell make of car. Plaintiff was the owner of a five-passenger 1917 model Maxwell touring car, and carried the same to defendant’s place of business in Birmingham for repairs. Negotiations were begun between the parties for an exchange of ears, resulting in a trade wherein the plaintiff gave the touring car and a check for $300 in exchange for a Maxwell roadster, 1919 model, of the defendant. Plaintiff took away the roadster which he had acquired in the exchange, but soon brought it back .to defendant’s place of business, complaining that it would not run without “jumping out of gear,” and offered to rescind the trade; but no agreement was reached as to a rescission. Plaintiff stopped the payment of his cheek, and, according to plaintiff’s version, immediately upon learning this fact defendant, without plaintiff’s consent, took charge of the roadster, carried it into its garage, and after-wards sold the same.
The complaint as originally filed sought damages for the conversion of the Maxwell roadster, but was subsequently amended by adding a fifth count seeking damages for the conversion of the Maxwell touring car. Upon the conclusion of the evidence, the trial court gave the affirmative charge for the defendant as to this latter count, and instructed them there could be no récovery for the touring car.
None of these cases, however, involved a transaction where the litigation arose between those who were parties to the exchange, such as was presented to the Court of Appeals in Massey v. Fain, 1 Ala. App. 424, 55 South. 936.
However, this argument ■ of appellant assumes that at the time the testimony was being offered the pleadings presented only an issue as to the Maxwell roadster, while, as previously stated, the count seeking recovery for a conversion of the touring car was also before the jury, and was only eliminated at the conclusion of the testimony. The evidence therefore offered under these circumstances, tending to establish the market value of the touring car, was admissible without regard to any other consideration. Indeed, plaintiff was permitted, without objection, in the opening of his case to testify that the defendant in effect admitted the market value of his touring car to be $150. Just following this testimony the plaintiff was permitted to show that after this estimate of valuation he had repair work done with the defendant at a cost of $120. The defendant objected to the question calling for this testimony upon the ground it was immaterial, illegal, incompetent, and irrelevant, and it is now insisted that the trial court erred upon the theory that it should also have been shown the amount expended was reasonable, citing L. & N. R. R. Co. v. Mertz, 149 Ala. 561, 43 South. 7; B. R. L. & P. Co. v. Sprague, 196 Ala. 148, 72 South. 96.
The objection interposed did not specify this ground, and we are of the opinion that therefore the trial court cannot be placed in' 'error for overruling such objection. Nor do we mean to indicate that the objection otherwise would have been well taken in view of the fact that defendant himself made the repairs and accepted payment thereof in this amount (Massey v. Fain, supra) — a question which we need not here determine.
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This criticism is also applicable to the question asked the witness Thrupp by defendant, to which' objection was sustained constituting the. nineteenth assignment of error. Moreover, this witness had already testified as to the market value of the car being $30.
The remaining assignment of error relates to the action of the court in overruling the motion for new trial based, it seems, principally upon the ground the verdict was excessive. The rule governing questions of this character is well understood an,d needs no repetition here. Suffice it to say the record has been most carefully examined, and we are not persuaded the action of the trial court in overruling the motion should be here disturbed.
Finding no reversible error in the record, the judgment appealed from will be here affirmed.
Affirmed.
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