Adair v. Gilmore

• Decision Date: 25 April 1895
• Citation: 106 Ala. 436,17 So. 544
• Parties: ADAIR ET AL. v. GILMORE.
• Court: Alabama Supreme Court

17 So. 544

106 Ala. 436

ADAIR ET AL. v. GILMORE.

Supreme Court of Alabama

April 25, 1895

Appeal from chancery court, Cullman county; Thomas Cobbs, Judge.

Action by Adair Bros. & Co. against D. M. Gilmore. From an order discharging a rule to show cause why defendant should not be adjudged in contempt, plaintiffs appeal. Affirmed.

George H. Parker and Alex. T. London, for appellants.

O Kyle, for appellee.

COLEMAN J.

The appeal is prosecuted from an order of the court refusing to commit the appellee for a contempt, upon the petition of Adair Bros. & Co. D. M. Gilmore became indebted to appellants for the purchase of fertilizers, and to secure the payment under an agreement to that effect, delivered to them certain notes as collateral. By the terms of the agreement the title and ownership of the collateral notes became vested in Adair Bros. & Co. These collateral notes were subsequently sent to Gilmore for collection, who received them, as shown by his receipt, as their agent. The debt of Gilmore not being paid at maturity, the appellants sued and recovered judgment in the circuit court of Cullman county against Gilmore, at the spring term, 1888, for $695.11. After execution, and return of "No property found," the appellants filed their bill in the chancery court, in which complainants averred their ownership of the collateral notes, their delivery to Gilmore as their agent, the collection of large sums of money by him, a demand for the money and the return of the uncollected notes, and his refusal. The bill prayed for a discovery and an accounting. The record before us does not contain the answer of the respondent. At chambers, on the 21st of November, 1891, the chancery court decreed that complainants were entitled to relief,and referred the cause to the register, to state an account, and ascertain and report to the next term the amounts collected, and what disposition had been made of the collateral notes. The register reported that there was due complainants on their judgment $912.90, and that there was a balance of $1,575 collected from the collateral notes, which respondent "has retained, used, and spent for his own benefit," and that there remained in notes uncollected "one hundred and two 54/100 dollars, which were in the hands of one J. W. Austin, Esq." The report of the register was in all things confirmed, and by final decree on the report of the register, among other things, the decree declares that, "it further appearing to the satisfaction of this court that the defendant has collected and received into his possession, from the collateral notes *** which were the property of complainants, fifteen hundred and seventy-five dollars over and above the amount turned over by him to complainants, it is therefore ordered, adjudged, and decreed that the defendant shall pay, turn over, and deliver to complainants, or their...