Opinion
1 Div. 237.
April 20, 1922.
Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.
R. H. McConnell, and R. H. R. M. Smith, all of Mobile, for appellant.
A judgment against the vendee is not binding on the vendor, unless the latter has notice of the suit, coupled with the information that he is called upon to come in and defend, and given an opportunity to assume the defense of it. 23 Cyc. 1260; 171 Mass. 127, 50 N.E. 464, 68 Am. St. Rep. 409; 17 R.I. 492, 23 A. 30, 33 Am. St. Rep. 893; 218 N.Y. 29, 112 N.E. 425, Ann. Cas. 1916E, 150; 19 Neb. 625, 28 N.W. 289; 123 Mo. 43, 27 S.W. 399; 215 U.S. 156, 30 Sup. Ct. 45, 54 L.Ed. 137; 25 Ala. 300, 60 Am. Dec. 515; 200 Ala. 187, 75 So. 935.
Smiths, Young, Leigh Johnston, of Mobile, for appellee.
Under the evidence in this case appellant is concluded by the former judgment rendered. 4 Ala. 700, 39 Am. Dec. 317; 23 Ala. 644; 13 Johns. (N.Y.) 224, 7 Am. Dec. 372; 20 Okl. 837, 95 P. 230, 16 L.R.A. (N.S.) 410, 16 Ann. Cas. 64, 1 Hill (S. C.) 27, 26 Am. Dec. 154; 53 Wn. 54, 101 P. 485, 32 L.R.A. (N.S.) 588; 24 R. C. L. § 507; 105 Kan. 643, 185 P. 898, 8 A.L.R. 668.
This is a suit for damages for breach of an implied warranty of title to an automobile known as a Chandler roadster. The litigation growing out of the purchase and sale of this car has previously been before this court [Gayle Motor Co. v. Gray-Acree Motor Co. (Ala. Sup.) 90 So. 334 ], but no questions there determined are of interest upon this appeal. Appellee (plaintiff in the court below) purchased this car from the appellant. Plaintiff's vendee lost possession of the car in a litigation with the Royal Auto Company, and in turn sued the present plaintiff and recovered possession of the Willys-Knight coupé which it had received in the trade for the Chandler roadster. The foundation of this latter cause was the failure of title of the Chandler roadster which plaintiff had purchased from this defendant, and it is not controverted that the title to said roadster was the sole question of determinative importance in that litigation.
The present defendant was immediately given notice of the pendency of that suit, and asked what they proposed to do about it. Numerous conferences were had between the parties and their counsel; the policy of defense discussed; and, without entering into a detailed discussion of the evidence, we think it clearly appears from the uncontradicted proof that this defendant actively participated in the defense of that litigation in recognition of their interest on account of their liability upon the implied warranty of title. Neither defendant nor its counsel made any suggestion as to the actual control or conduct of the litigation, but, on the contrary, plaintiff was urged to defend the suit; and the testimony of the secretary-treasurer of defendant company sufficiently indicates that he considered the parties jointly interested in such defense, and testified that he stated to the plaintiff that he "would treat it right about the case if it was lost."
The trial court entertained the opinion that under the circumstances here shown without dispute the judgment rendered in the litigation of Gray-Acree Motor Company against the present plaintiff was conclusive against this defendant as to the invalidity of the title to the car there involved, and the subject-matter of this suit; and upon this theory the affirmative charge for the defendant with hypothesis was given.
Counsel for appellee insist that under the authorities of Harris v. Roland's Adm'r, 23 Ala. 644, and Salle v. Light's Exr., 4 Ala. 700, 39 Am. Dec. 317, notice of the pendency of the suit in the former litigation, and thus an opportunity to come in and participate in the defense of that suit, was itself sufficient without more to constitute the judgment therein rendered conclusive against this defendant. On the contrary, counsel for appellant insist that notice of the pendency of the suit alone is not sufficient, but that this appellant should also in addition to this have been requested and instructed to take charge of the defense in that litigation in such a manner as would have practically substituted it for the defendant in the management of the cause, and that as the evidence fails to show such offer, the affirmative charge was erroneously given, citing 23 Cyc. 1249-1252; Fish v. Vanderlip, 218 N.Y. 29, 112 N.E. 425, Ann. Cas. 1916E, 150; Schribar v. Platt, 19 Neb. 625, 28 N.W. 289; State v. Johnson, 123 Mo. 43, 27 S.W. 399; Rumford Chem. Wks. v. Chem. Co., 215 U.S. 156, 30 Sup. Ct. 45, 54 L.Ed. 137; Tarleton v. Johnson, 25 Ala. 300, 60 Am. Dec. 515; Wilson v. Henderson, 200 Ala. 187, 75 So. 935; Cons. Hand Mach. Co. v. Bradley, 171 Mass. 127, 50 N.E. 464, 68 Am. St. Rep. 409. These authorities have been by us examined, but none of them concern the question as to the warranty of chattels sold.
It is recognized as part of the contract of warranty that the vendor of chattel shall defend the title; in this manner the buyer has the advantage of the seller's better information, and also there is saved the necessity of trying the same title in an action against the seller; and, as said in 24 R. C. L. 233, "the notice to the seller makes him a privy to the record, and he is bound by it to the extent to which his rights have been tried and adjudged."
Under the undisputed evidence in this case we find it unnecessary to determine as to whether or not notice of the pendency of the suit alone is sufficient, or whether it is required that an offer also be made to surrender the entire control and management of the defense to the seller as a condition precedent for the binding effect of the judgment rendered. This, for the reason that, even if it should be conceded, without deciding, that such an offer of surrender of control was necessary, the undisputed evidence shows it was clearly waived in the instant case. The officers and counsel of this defendant urged the defense to be made by this plaintiff; actively participated therein; made no suggestion whatever indicating the least desire to have the sole management and control of the cause. To all intents and purposes it was a joint defense.
While this direct question of waiver does not seem to have been considered in Barney v. Dewey, 13 Johns. (N.Y.) 224, 7 Am. Dec. 372, and City of Boston v. Roland Worthington, 10 Gray (Mass.) 496, 71 Am. Dec. 678, these authorities tend strongly to support the conclusion which we have here reached if, indeed, authority to that end were necessary. We are therefore of the opinion that under the circumstances here shown and the undisputed proof, the court correctly held the present defendant conclusively bound by the judgment rendered in the former litigation between this plaintiff and the Gray-Acree Motor Company, and that the affirmative charge was therefore properly given.
The judgment will therefore be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.