Plaintiff-appellee filed suit in the circuit court of Monroe County against defendant-appellant, with one count in trespass and another in trover, to recover damages arising
It appears from the undisputed evidence that part of the consideration was to be financed over a period of twenty-four months in monthly installments, each maturing as hereinafter appears.
Plaintiff executed and delivered to defendant-vendor (admittedly acting through her agent) a written instrument in form used by Commercial Credit Equipment Corporation in financing the transaction. We may add that, as indicated by other cases before this Court, it is, in substance, the form commonly used to finance such transactions. Such an instrument, as here, has been defined by this court as a mortgage, although part in the form of a conditional sales contract. American Discount Co. v. Beck, 263 Ala. 470, 83 So.2d 232; Bern v. Rosen, 259 Ala. 292, 66 So.2d 711.
It appears in evidence that plaintiff signed an agreement as follows:
As a part of the contract executed by plaintiff there appears as follows:
Transfer and assignment of the above instrument was, on April 24, 1961, made by the vendor to Commercial Credit Equipment Corporation, and, by that company, in writing, reassigned to defendant on November 24, 1961.
It further appears from the evidence without dispute that plaintiff became delinquent in payment of the installments due respectively on October 15 and November 15, 1961, concerning which the Finance Company wrote plaintiff on November 22, 1961, as follows:
"Dear Mrs. Dickson:
Plaintiff testified that on November 25, 1961, she mailed a check dated November 27, 1961, in an amount of $270.20 to cover these delinquent installments.
On that same date, November 25th, defendant testified that he repossessed the tractor. The instrument had been assigned and transferred to him on the preceding day. Therefore, it appears when the check was mailed, according to plaintiff's testimony, on November 25th, the Commercial Finance Investment Corporation, was not the owner of the contract, and was without authority to receive the payment. Later, after the tractor was repossessed, the Finance Company, on December 4th, returned the check to plaintiff.
We held in Ison Finance Company v. Glasgow, 266 Ala. 391, 96 So.2d 737 (7), that a subsequent agreement may be made to extend the time of payment of a note, but it must be based on a valuable consideration. Citing Cox v. Mobile & G. R. Co., 37 Ala. 320; David v. Malone, 48 Ala. 428; Scott v. Scruggs, 95 Ala. 383, 11 So. 215; Ray v. Summerlin, 211 Ala. 334, 100 So. 482; Malcomb v. Robinson, 230 Ala. 474, 161 So. 510. Under this rule, the agreement or offer on the part of the Commercial Credit Equipment Corporation to extend payment for five days was without force or binding effect because consideration therefor was absent. Mailing of the check on November 25, 1961, after the Finance Company had parted with title to or ownership of the contract by assignment to defendant did not constitute payment or tender of payment to the then owner of the contract. Therefore, when defendant repossessed the tractor on November 25, 1961, the payments as evidenced by the note were in default.
The law is well settled that the owner of personal property may recapture and take into his possession whenever or wherever found, but in taking possession of his own property he must commit no trespass, violence, force, or breach of the peace. In other words unlawful force forms the essential element of trespass. Stowers Furniture Company v. Brake, 158 Ala. 639, 48 So. 89(6) (7); McGill v. Holman, 208 Ala. 9, 93 So. 848(1), 31 A.L.R. 941; McWaters v. Gardner, 37 Ala.App. 418, 69 So.2d 724 (2).
In this connection, it should be noted that force may be either express or implied. That is to say that the term "force" as applied to a trespass to personal property does not necessarily mean actual physical force, but it may mean constructive force. Crews & Green v. Parker, 192 Ala. 383, 68 So. 287(7); McWaters v. Gardner, 37 Ala. App. 418, 69 So.2d 724(3), supra.
In the case at bar, appellant took possession of the tractor without the knowledge or consent of appellee, and out of her presence. This fact alone was not the equivalent of taking by constructive force. McWaters v. Gardner, 37 Ala.App. 418, 69 So.2d 724(4), supra; Street v. Sinclair, 71 Ala. 110(1); Burns v. Campbell, 71 Ala. 271(1).
We are impressed from the evidence that the act of the defendant in repossessing the tractor comported with law and his authority under the contract; that there was no evidence upon which the jury could base a verdict for plaintiff on Count 1 of the complaint.
To constitute a conversion there must be a wrongful taking, or a wrongful detention, or an illegal assumption of ownership, or an illegal user or misuser. Consolidated Graphite Corporation v. Kelly, 227 Ala. 516, 150 So. 682(7).
Defendant, in the case at bar, exercised a lawful right provided by the terms
We conclude that the trial judge committed reversible error in refusing defendant's request for affirmative instructions with hypothesis directed to the jury that they return a verdict for the defendant.
It is ordered that the judgment be reversed and the cause remanded.
The foregoing opinion was prepared by B. W. Simmons, Supernumerary Circuit Judge, and was adopted by the court as its opinion.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN, COLEMAN and HARWOOD, JJ., concur.