Avery & Sons v. Miller

• Decision Date: 16 April 1889
• Court: Alabama Supreme Court
• Parties: B. F. AVERY & SONS v. MILLER ET AL.

6 So. 38

86 Ala. 495

B. F. AVERY & SONS v. MILLER ET AL.

Supreme Court of Alabama

April 16, 1889

Appeal from chancery court, Etowah county; S. K. McSpadden Chancellor.

The bill in this case was filed on the 4th of May, 1888, by B. F Avery & Sons, a corporation organized under the laws of Kentucky, against J. P. Miller, John L. Pogue, and S. L Whitten, and sought to enforce a vendor's lien on certain real estate in Gadsden, for the unpaid purchase money, as evidenced by a promissory note for $1,000, which was made an exhibit to the bill, and of which the complainant claimed to be the owner by transfer before maturity. The note was signed by defendant Whitten, dated Birmingham, February 1, 1887, and payable 12 months after date to the order of defendant Miller, by whom it was indorsed in blank; and it contained a waiver of exemptions as to personal property, and a stipulation for the payment of attorney's fees for collection of 10 per cent. The bill alleged that the note was "surrendered to complainant, before its maturity, by said John L. Pogue, properly indorsed by said Miller, in consideration of the full settlement and satisfaction of an existing debt due to complainant from the said late firm of Kittrell & Kittrell;" Pogue having before that time married Mrs. Kittrell, one of the members of the firm, and agreed to pay the debt by delivering lumber.

A joint and several answer to the bill was filed by Miller and Pogue denying complainant's ownership of the note, and claiming that it belonged to them jointly. As to the manner in which the complainant obtained possession of the note, their answer contained these allegations: "Some time in February 1887, one Lewis came to Gadsden, representing himself to be complainant's agent, and his business to be the settlement, if possible, of the matters between complainant and the said Pogue. In the conversation between them, Pogue told said Lewis that he and J. P. Miller held said note, each owning a half interest in it; and proposed to said Lewis that, if he (Lewis), could get the note discounted by the Bank of Gadsden, Avery & Sons might have his half of the money arising from the discount, and he would add to it cash enough to make the amount they would receive $500, provided Avery & Sons would give him a clear receipt against said lumber contract. Said Miller agreed to let the note be discounted on these terms, but stated to said Lewis, expressly and distinctly, while the note was still in his possession, that he had and then owned a one-half interest in it. With this understanding and agreement, said Miller wrote his name on the back of said note, and it was handed to said Lewis, as complainant's agent, to take it to the bank, and see if the bank would discount it; and these respondents aver that the possession of said note was thus given to said Lewis, for this sole purpose, and no other." The answer alleged, also, that Lewis represented on his return from the bank that a pressure of business prevented action on the note at that time, but he had left it with his attorney, who would attend to it; that they made inquiry of the attorney, about the time the note matured, and were told by him that it had not been left with him; and that on subsequent inquiry of B. F. Avery & Sons, by mail, they were informed that complainant had the note, and intended to enforce its collection. They prayed that their answer might be taken as...