Barnett v. Warren

• Decision Date: 27 May 1887
• Citation: 2 So. 457,82 Ala. 557
• Parties: BARNETT v. WARREN AND ANOTHER.
• Court: Alabama Supreme Court

2 So. 457

82 Ala. 557

BARNETT v. WARREN AND ANOTHER.

Supreme Court of Alabama

May 27, 1887

Appeal from circuit court, Montgomery county.

Action for money had and received.

This action was brought by Thomas M. Barnett against J. R. Warren & Co., a mercantile firm doing business in the city of Montgomery, and was commenced November 2, 1886. The complaint contained only the common counts, and the only plea was the general issue. The court charged the jury, on request in writing, that they must find for the defendant if they believed the evidence; and this charge, to which the plaintiff excepted, is now assigned as error. The material facts are stated in the opinion of the court.

Marks & Massie, for appellants.

Roquemore, White & Long, contra.

STONE C.J.

There is no controversy about the facts in this case. Belser &amp Parker, by contract, became tenants for the year 1886 to Barnett, appellant, of a plantation in Bullock county, at an agreed rent of $1,200, to be paid in November, 1886. Belser &amp Parker did not personally cultivate the lands, but sublet them to under-tenants, taking their obligations to pay the rent in cotton, aggregating 35 bales to be paid. These obligations to deliver or pay in cotton, Belser & Parker deposited with J. R. Warren & Co. as collateral security for a debt contracted or to be incurred. Warren & Co. knew what lands the cotton specified in the contract was to be grown on; knew that Belser & Parker had rented the lands from Barnett, the rent to be afterwards paid; and, up to and including the time when they received the $500 after noticed, they were informed that the rent due to Barnett had not been paid.

When the crop matured and was harvested, Belser & Parker collected the rent cotton, 35 bales, and placed it with Lehman, Durr & Co. The testimony shows that Lehman, Durr & Co. made sale of the cotton for Belser & Parker, but is not stated in terms that they were cotton factors. They (Lehman, Durr & Co.) had notice that J. R. Warren & Co. held the rent contracts of the subtenants on account of which the 35 bales of cotton had been delivered, and that they claimed the proceeds, or a lien on the proceeds, of the cotton. There is no proof that Lehman, Durr & Co. were notified that any rent was due to Barnett. The facts being thus, on October 5, 1886, Belser & Parker, at the request of J. R. Warren & Co., drew on Lehman, Durr & Co. as follows: "Pay to order of J. R. Warren & Co. five hundred dollars for rents collected, for which they hold collaterals, value received, and charge the same to account of Belser & Parker." Lehman, Durr & Co. paid this draft to J. R. Warren & Co.,-the latter's name being indorsed on the draft; and the sum thus paid was charged to Belser & Parker's general account with Lehman, Durr & Co.

When J. R. Warren & Co. sought to obtain the draft on Lehman, Durr & Co., copied above, they were informed by Belser, of the firm of Belser & Parker, that, if, it were drawn on them generally, it would not be honored; "that Lehman, Durr & Co. would not pay it unless it was out of the cotton covered by their [defendants'] said collaterals from the Barnett place; that Belser & Parker did not have any funds on deposit with Lehman, Durr & Co.," but owed them largely on account. The general manager of the house of Lehman, Durr & Co. gave testimony (and his testimony was not controverted) as follows: "That the draft in evidence was presented to Lehman, Durr & Co. by defendants, and the amount thereof was paid to them; that it was paid on account of the said thirty-five bales of cotton; *** that said draft was charged, on the account of Belser & Parker, as so much money paid out of thirty-five bales of cotton raised on the Barnett place." The record states that "it was admitted by defendants that they had notice of plaintiff's lien." There was no testimony that the 35 bales of cotton, or any part of it, had been sold, when Lehman, Durr & Co. paid the draft to J. R. Warren & Co.

It is not controverted in this case that Barnett had a lien on the 35 bales of cotton for the unpaid rent due him, and that he could enforce that lien against the cotton, or its proceeds, into whose hands soever the one or the other might pass, unless the right and title of a bona fide purchaser without notice had intervened. Westmoreland v. Foster, 60 Ala. 448; Hussey v. Peebles, 53 Ala. 432; Thompson v. Merriman, 15 Ala. 166. The precise contention is that, inasmuch as it is not shown the cotton had been sold when J. R. Warren & Co. collected the draft from Lehman, Durr & Co., the money collected was not, and could not be, the proceeds of cotton then unsold; and hence Warren & Co. had not received money to which Barnett was entitled.

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