Baker, Lyons & Co. v. American Agr. Chemical Co.
| Decision Date | 15 November 1917 |
| Docket Number | 1 Div. 971 |
| Citation | 77 So. 866,201 Ala. 328 |
| Parties | BAKER, LYONS & CO. v. AMERICAN AGRICULTURAL CHEMICAL CO. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 24, 1918
Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.
Assumpsit by the American Agricultural Chemical Company against Baker Lyons & Co., a partnership, and as individuals. Judgment for plaintiff, and defendants appeal. Affirmed.
The gravamen of plaintiff's case is that defendants, who are cotton factors, sold and converted to their own use about 130 bales of cotton, which were the property of plaintiff. The complaint contains several counts for money had and received a count in trover, a count in trespass, and several counts for conversion, with a statement of the facts. Count 5 is as follows:
Plaintiff claims of defendants the further sum of $7,500 for that heretofore, to wit, in the latter part of the year 1914 one E.N. Amos, who had previously assigned to and hypothecated with the plaintiff to secure an indebtedness owing by the said Amos to the plaintiff in the sum of, to wit, $8,620.60, sundry mortgages given to him by various people, and who had been appointed by the plaintiff as plaintiff's agent to collect the indebtedness secured by said mortgages for the plaintiff, and who had received as payments on many of said mortgages from the respective makers thereof, to wit, 130 bales of cotton covered by one or more of said mortgages, and had credited each of the parties delivering the said cotton with the value thereof upon the indebtedness secured by the mortgage of the party making such delivery, collection in that manner having been authorized by plaintiff, delivered the cotton so collected and received, to wit, 130 bales, to the defendants, who were then doing business as cotton factors in the city of Mobile, Ala., and the defendants during, to wit, the month of January, 1915 sold to bona fide purchasers for value, to wit, 111 bales of the said cotton, and retained the proceeds thereof, applying the same as a credit upon an indebtedness then owing by the said Amos to the defendants, all to the hurt and injury of the plaintiff in the sum herein claimed, wherefore plaintiff sues.
Besides the general issue and the statute of limitations for one year, defendant pleaded several special pleas, the general substance of which is shown by plea 3, which is as follows:
That defendants are cotton factors doing business in the city of Mobile, Ala., and have been doing such business for more than five years preceding the filing of this suit; that some time in the month of, to wit, March, 1914, E.N. Amos, who was engaged in the general merchandise business at Brooklyn, Ala., made arrangements with defendants to provide for the extension of an indebtedness then due and owing defendants and to secure additional moneys and advancements for the purpose of carrying on his business during the year 1914; that as security therefor the said E.N. Amos promised and agreed to ship to the defendants all cotton which he would raise, handle, or control during the season of 1914; that in pursuance of said arrangements, and in consideration of the security offered, the defendants advanced the said E.N. Amos large sums of money during the said year of 1914, and that defendants had no notice of any lien whatsoever which may have been claimed by the plaintiff, but that they sold said cotton on, to wit, the 8th day of January, 1915, and applied the proceeds as a credit to the indebtedness arising by reason of the said transaction had with the said E.N. Amos. They further allege that there is still due and owing them a large sum of money, to wit, $11,000. They further allege that they had the right to make such application of the proceeds by reason of the lien existing in their favor as cotton factors.
The following facts are substantially undisputed: The plaintiff company sold fertilizer in the spring of 1914 to one Amos, a merchant, who sold it to farmers, and took from them notes and mortgages on their crops and other personalty as security. By a prearrangement Amos transferred, assigned, and delivered these mortgages to plaintiff as collateral security for its account against Amos, said transfer being made July 21, 1914. On September 24, 1914, said notes and mortgages were redelivered to Amos under the following written agreement with him:
Thereafter, in the fall of 1914, Amos received 115 bales of cotton from the several mortgagors covered by the mortgages, besides 13 bales for a half interest only. As each lot of cotton was delivered to Amos he agreed with the several mortgagors that the mortgages should be credited with the value of the cotton delivered, and credit was afterwards given by him on the basis of the sales of the cotton afterwards made by defendant, to whom he delivered the cotton, on his own account. On March 4, 1914, Amos executed to defendants, Baker, Lyons & Co., his promissory note aggregating $25,000, to cover existing indebtedness for farm advances, and also present and future advances of money, said notes containing the provision:
"I also agree as part of the consideration hereof to ship Baker, Lyons & Co. all the cotton I raise, handle, or control during the season of 1914."
Under this agreement, and also an oral agreement to turn over his collateral securities to defendant, Amos shipped to...
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