Beasley v. Burroughs & Taylor Co.

• Decision Date: 18 May 1916
• Docket Number: 4 Div. 623
• Citation: 196 Ala. 397,72 So. 122
• Parties: BEASLEY et al. v. BURROUGHS & TAYLOR CO.
• Court: Alabama Supreme Court

72 So. 122

196 Ala. 397

BEASLEY et al. v. BURROUGHS & TAYLOR CO.

4 Div. 623

Supreme Court of Alabama

May 18, 1916

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Suit by the Burroughs & Taylor Company against J.T. Beasley and another for the breach of a forthcoming bond and attachment. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911 (Laws 1911, p. 450) § 6. Affirmed.

The attachment was issued at the instance of plaintiffs against W.C. Parish upon a lot of dry goods, and the bond was given for the forthcoming of the goods if found liable to attachment as the property of W.C. Parish. It is alleged that defendants failed to make and set forth their claim in a written affidavit as required by the statute, and that judgment was rendered in the original suit in favor of plaintiffs, and against Parish, and defendants have failed to deliver the property described therein. The defendant filed the general issue and a plea setting up the ownership of the goods under mortgage covering the property in question, and that the amount secured by the mortgage was greatly in excess of the value of said stock of goods, and the other property embraced in the mortgage. The other facts sufficiently appear in the opinion.

W.O Mulkey, of Geneva, for appellant.

W.R Chapman, of Dothan, for appellee.

MAYFIELD J.

This appeal involves only one question; that is, the validity of a mortgage, as against creditors of the mortgagor.

The mortgage was chiefly on a stock of goods being used in trade in a mercantile business by the mortgagor, though there was also other property embraced therein. The mortgage was executed to secure existing indebtedness, as well as debts to be incurred in the future. The instrument contained, among others the following provisions:

"It is understood and agreed by the mortgagors and J.T Beasley that the proceeds from the sale of the said stock of goods is to be placed to the credit of said mortgage indebtedness until fully paid, with interest on same less the actual running expenses to carry on said business. We further agree to keep said stock of goods fully insured, seventy-five per cent. on the dollar."

The mortgage was dated December 14, 1907, and the law day was May 1, 1908.

It also appears without dispute that there was a parol agreement between the mortgagor and the mortgagee, as to the continuation of the business and sale of the goods mortgaged and as to a salary to be paid the mortgagor. This parol agreement is stated by the mortgagor as follows:

"The witness remembers about the sheriff coming over to Samson in March, 1908, and at that time he was in business in a way, according to contract; he was in charge of a stock of goods just like it is on record. Witness was there in charge of a stock of goods, and was operating the business under the name of W.C. Parish; he had a sign in front of the store, and it was W.C. Parish, and there was no other name, just W.C Parish; that he had been there nearly over a year then; that after the levy after the sheriff came there be continued to operate it there up until some time in May; he operated it for six weeks later than that, and he continued to operate it in the name of W.C. Parish, and during all that time he was selling some goods, and kept offering them for sale, a few of them, and were selling for cash; he did not sell any goods on credit; no one stayed in the store with him at that time; he had no clerk and the business was operated in his name all during the time from March, 1907, on up until some time in 1908; that he had the key to the store; that the bills that were made by the store were paid by him and goods that were bought in his name.

"The witness further stated that there was another agreement between him and Beasley, at this time of the execution of the mortgage, that Mr. Beasley told him that he believed that by managing the business properly that it would pay them to remain on in the business, and he would carry the amount for him, if he (Parish) would secure it. That was before he gave him the first mortgage. The last one, he

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