Bickley, McClure & Co. v. Porter

• Decision Date: 20 May 1915
• Docket Number: 721
• Citation: 193 Ala. 607,69 So. 565
• Parties: BICKLEY, McCLURE & CO. v. PORTER et al.
• Court: Alabama Supreme Court

69 So. 565

193 Ala. 607

BICKLEY, McCLURE & CO. v. PORTER et al.

No. 721

Supreme Court of Alabama

May 20, 1915

Rehearing Denied June 30, 1915

Appeal from Clay County Court; E.J. Garrison, Judge.

Claim suit between Bickley, McClure & Co., plaintiffs in execution and R.A. Porter and others, claimants. Judgment for claimants, and said plaintiffs appeal. Transferred from the Court of Appeals of Alabama under section 6, Act April 18 1911 (Gen.Acts 1911, p. 449). Affirmed.

The plaintiffs were judgment creditors of the B.C. Bynum Mercantile Company, and had execution issued and levied upon certain personal property as the property of the defendant in execution. This property was claimed by Porter and others, as a committee of three, under the facts and circumstances as set out in the opinion.

The following is charge 7 refused to plaintiffs in execution:

(7) The intention of parties governs in a contract, and if you are satisfied from the evidence in this case that plaintiffs reserved the right to reduce their claim to judgment, and did reduce it to judgment, following said right to reduce it to judgment, then said judgment would be a lien on the property levied on from and after the date it was recorded, and I charge you that said judgment was recorded on July 19, 1912, before the deed of trust was recorded.

Walter S. Smith, of Lineville, for appellant.

Cornelius & Cornelius, of Ashland, for appellees.

MAYFIELD J.

This is a claim suit instituted by appellees. Appellants claimed the property as execution creditors of B.C. Bynum Mercantile Company; and appellees claimed the property as a committee of three, appointed by the execution debtor and a majority of its creditors, averring that they, as such committee, took possession of the property to administer it for the benefit of all the defendant's creditors including appellants.

There is no dispute that appellants were judgment and execution creditors of the defendant in execution, nor that the goods levied upon belonged to the defendant and were subject to the execution, unless the appellants were bound by an agreement among the creditors and the defendant in execution whereby the appellees were to take the property of the defendant and administer it in accordance with certain stipulations. If the appellants are bound by that agreement, then in equity and good conscience they ought not to take the property from the committee and subject it exclusively to their judgment; equitable defenses, under our statute, being availing in this kind of actions. Code, § 6039.

There is no dispute that an agreement was made between the debtor and its creditors by which the appellees were appointed as a committee; that the property was delivered by the debtor to this committee, and that they were administering it for the purpose of paying the debts of the debtor; nor that the appellants had notice of the agreement. But there is a dispute as to whether or not the appellants agreed to the arrangement, or were bound, or intended to be bound, thereby. In fact, this is the only real dispute, and on this issue the result of the claim suit depended.

It is first insisted that there was a variance, in that the claimants claimed the property as individuals, and the...