Bank of Guntersville v. Webb

• Decision Date: 09 January 1896
• Citation: 108 Ala. 132,19 So. 14
• Parties: BANK OF GUNTERSVILLE v. WEBB ET AL.
• Court: Alabama Supreme Court

19 So. 14

108 Ala. 132

BANK OF GUNTERSVILLE v. WEBB ET AL.

Supreme Court of Alabama

January 9, 1896

Appeal from circuit court, Jackson county; James A. Belbro, Judge.

This was an action of assumpsit commenced on the 7th day of August, 1893, by the Bank of Guntersville, a corporation against D. M. Webb and T. J. Butler. The complaint contained three counts, each claiming $206.19. The first count claimed that sum as due by account on the 25th day of June, 1893(?). The second was for money paid for defendants at their request by the plaintiff. The third for money loaned by plaintiff to defendants on the 25th day of June, 1892. Defendants owned a lot of lumber. One Alvin, as the agent of the Massengale Lumber Company, or Russell, Massengale & Co., as it is otherwise called in the record, of St. Louis, agreed to purchase it. The evidence of defendants tended to show that the price was agreed on, but they declined to part with their lumber without the money or some security; that said Alvin referred defendants to plaintiff corporation. The lumber was loaded on a boat, shipped to said lumber company, and a bill of lading taken therefor, and said Alvin executed and delivered to defendants a sight draft dated June 14, 1892, on said lumber company, for $778.75, the purchase price of said lumber. Defendant, Butler, accompanied said lumber, as far as Guntersville, the home of plaintiff corporation, and had an interview with one Faulkner, its teller, at its place of business. The result of the interview was, that this draft indorsed by both defendants, was delivered with the bill of lading attached, to plaintiff. And at the same time, said Butler received from plaintiff $200 drawing his check therefor, and also a receipt or duplicate deposit slip. The testimony of plaintiff is, that the deposit slip read as follows: "Guntersville, Ala. Deposited June 14, 1892. Check $778.85. Dr. 1.94-776.91. To be paid when collected. Webb & Butler." When Butler was examined, the paper he produced as this deposit slip, and introduced in evidence read as follows: "Bank of Guntersville, Guntersville Ala. deposited June 14, 1892, check $778.85-$1.94-$776.91. C. H. Faulkner, Teller. To be drawn against when paid, $776.91. credit Webb & Butler, Langston, Ala." Butler could neither read nor write, and got one Tyler to indorse his name on draft and sign check. Neither of defendants had, up to that time, any account with said bank. Before the plaintiff would have any dealing with said Butler, it required his identification, and evidence that he was worth more than the amount of the draft. Plaintiff's evidence tended to show, that they received the draft for collection merely, and advanced $200 on it, taking Butler's check on it as evidence of the payment. Defendants' evidence tended to show, that plaintiff bought the draft from them, that the $1.94 was the discount, and that the $200 was part of the purchase price, and that plaintiff agreed to pay the balance Saturday or Monday following. The evidence tended to show, that the draft was sent forward twice for collection, and not paid, and was, on June 18, 1892, protested. The protest showed notice sent to defendants, but they denied receiving notice. The draft had indorsed on it: "Drawn irregular,-lumber not yet arrived. R. M. C. Co." "Have paid shipper long since. R. M. C. Co." But by whom or when these indorsements were made is not shown. The bill of lading is not set out in the transcript, nor is it shown what disposition plaintiff made of it or the draft. About two weeks after the lumber was shipped, and before this suit was brought, defendants received from the lumber company a check for $541, which they sent to St. Louis and collected the money on. And their evidence tended to show that this money was not received "in full for the lot of lumber;" that a short time after receiving this money, they "dunned" the plaintiff for the balance, stated as $36, and plaintiff "dunned" them for the $200 paid to them, and neither paid these respective demands. Defendant Webb testified that he did not borrow any money from the bank or authorize defendant Butler to borrow any. Faulkner testified, that Butler "was informed of the contents of deposit slip when he received it." Butler testified that he was not informed of the contents of deposit slip when he received it; but was afterwards informed by Webb, who read it to him, and that in about two weeks thereafter, he called at the bank and informed its vice president, in substance, that it was incorrect. One Morgan testified that defendants sent him to plaintiff bank with said slip to get "some money," but when this was is not stated. Defendants pleaded (1) that they did not owe the debt; (2) that they had paid the debt; and also three pleas of set-off, each counting on the draft transaction, and in substance claiming the amount of the draft less the $200 and the discount. Each averred demand, and, the last two, failure on the part of the plaintiff to return either the draft or the bill of lading. The plaintiff requested the following charges: (1) "If the jury believe the evidence they will find for the plaintiff." The court refused said charge and plaintiff duly excepted. (2) "If the jury believe the evidence they should find for the plaintiff against the defendant Butler." The court refused said charge and plaintiff duly excepted. (3) "If the jury believe from the evidence, that the defendants retained the deposit slip after the alleged conversation with Thomasson, and used it as the evidence of their demand on the bank, then they are bound by it, and the conversation would not affect the result." The court refused to give either of said charges, and the plaintiff duly excepted. The court, at the instance of defendants, gave the following charges, to each of which the plaintiff duly excepted: (4) "If the evidence fails to reasonably satisfy the jury, that Webb authorized Butler to borrow the $200 from the bank, or that he ratified it after he had knowledge of it, if it was brought to his knowledge, then the verdict should be for Webb notwithstanding the jury might find Butler liable." (5) "If the bank by its agent agreed to discount this draft and pay the defendants the amount of the draft, less the discount, then the plaintiff cannot recover." (6) "If the jury believe that the defendant, Butler, went within a reasonable time, and on his first opportunity, he saw the vice president of the bank, Dr. Thomasson, and told him that this slip was not the agreement the bank made with him, and told him the transaction, then this was a repudiation of the paper, and the defendants' keeping the paper after this would make no difference." There were verdict and judgment for the defendants. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. Reversed.

Lusk & Bell and Martin & Bouldin, for appellant.

J. E. Brown, for appellee.

HARALSON J.

This was an action of assumpsit instituted by appellant against the appellees. Exceptions were reserved by appellant to the action of the court in rulings on the evidence and in giving and refusing to give certain charges.

Defendant Butler, in testifying to what occurred between himself and the representative of the plaintiff, one Faulkner, at the time of the negotiations between them, which resulted in the delivery of the draft and the bill of lading to the bank testified among other things, that he told Faulkner that he did not want to wait, as proposed by him till Saturday and check on the bank for the money; that he did not want to do such a thing as that unless he could "get it on them," (the bank;) that he did not think the lumber company was safe; that he told Faulkner that he could neither read nor write; that he did not know anything about "fixing up" matters of that sort; that Faulkner replied, that he knew all about it and would fix it up; that he "just...