Bromberg v. First Nat. Bank

• Decision Date: 16 December 1937
• Docket Number: 1 Div. 975
• Citation: 178 So. 48,235 Ala. 226
• Parties: BROMBERG et al. v. FIRST NAT. BANK OF MOBILE et al.
• Court: Alabama Supreme Court

178 So. 48

235 Ala. 226

BROMBERG et al. v. FIRST NAT. BANK OF MOBILE et al.

1 Div. 975

Supreme Court of Alabama

December 16, 1937

Rehearing Denied Jan. 20, 1938

Appeal from Circuit Court, Mobile County; Chas. C. Hand, Special Judge.

Bill of interpleader by the First National Bank of Mobile, as executor of the estate of Frederick G. Bromberg, deceased against John L. Bowen and others and Frederick William Bromberg and others. From a decree for respondents Bowen and others, respondents Bromberg and others appeal.

Affirmed.

Harry T. Smith & Caffey, of Mobile, for appellants.

McMillan & Aldridge, Outlaw & Seale, and Smith & Johnston, all of Mobile, for appellees.

THOMAS Justice.

The pleading of First National Bank was interpleader. Adverse interest was supported and all parties were duly represented.

The case was tried upon amended pleadings, was so decided by the circuit court of Mobile county, Ala., in equity, and will be likewise considered here. Thomas, Supt. of Banks, et al v. Barnes et al., 219 Ala. 652, 123 So. 18, and Federal Automobile Insurance Ass'n et al. v Meyers, 218 Ala. 520, 119 So. 230.

The pleading of the First National Bank, as the personal representative of the estate of Frederick G. Bromberg, sought directions as to the disposition of the moneys and properties of said estate.

Pertinent parts of the final decree, on the several pleadings and evidence, were as follows: (1) That the heirs of said decedent Bromberg are not entitled to the funds or properties held by the bank and the same constitute no part of decedent's estate; (2) that the acts, declarations, and correspondence of Mr. Bromberg created an express trust in the special funds and moneys deposited with proponent; (3) that prior to his death the said Frederick G. Bromberg distributed a portion of the trust funds held by him in trust for the use and benefit of heirs, distributees, and personal representatives, among some of the heirs; (4) that a reference should be held to ascertain the costs, fees, expenses, and allowances in connection with this proceeding, and the names and respective interests in said trust funds of the heirs, distributees, and personal representatives of said John Bowen; and (5) that the balance of such trust funds remaining after paying the costs, expenses, fees, and allowances in connection with this proceeding should be distributed among the heirs, distributees, and personal representatives of the said John Bowen, as their respective interests may appear.

The excerpts to be made of Mr. Bromberg's reports and testimony will give the antecedent history of this controversy. We forego a detailed statement thereof at this juncture other than to say that Mr. Bromberg stated the balance of the instant accounts and trust, and such acts and declarations being against his personal interest and made in due course are accepted by appellee's counsel and by the trial court as the true and just amount to be distributed. Code 1923, § 7672; Hodge v. Joy, 207 Ala. 198, 92 So. 171; Indemnity Ins. Co. of North America v. Holiway, 233 Ala. 100, 101, 170 So. 329. And we may observe, not only did the acts and declarations of Mr. Bromberg show the trust and for whom it was maintained, but the testimony of his employees was also to like effect. This confirmed the stated amounts of $23,844.43, less commissions of $3,470.41, leaving $20,374.62 for distribution. A reference to the balance shown in the First National Bank on November 20, 1928, of $23,844.42, will show a correspondence of amounts that is significant and in accord with Bromberg's statement of the amount of the account, and that the amount on hand for distribution was $23,844.43. That is to say, when Bromberg's commissions of $3,470.41 are deducted from the sum indicated above, it is in accord with the amount on hand for distribution, to wit, $20,374.02. This appears to be conclusive of the balance of the trust fund for distribution.

We now come to a consideration of the parties before the court who are entitled to a distribution of this fund. This is a necessary response to the pleading of the First National Bank.

The second paragraph of the answer of the Bowen heirs reads:

"These respondents allege that the money in the hands of complainant is proceeds of property at one time belonging to the firm of Bowen & Murdock, a partnership as alleged in the bill, and that the proceeds should be paid to said heirs and personal representatives after paying the costs and legal charges and advancements made in the operations of the properties of said firm, but these respondents say that John Bowen, one of the original partners advanced for the operation of said business large sums of money in excess of the amount now in the hands of the complainant, which advancements were a valid charge against said properties and against the partnership and should be repaid to him or to his heirs and personal representatives before distribution of any balance that might be due the heirs and representatives of the said partners as such."

In the second paragraph of their answer (above set out), the Bowen heirs deny that Bromberg had legal title to the money; in the seventh paragraph they allege that the moneys are a trust fund; and in the fourth, fifth, and sixth paragraphs, set out the history and claim of the moneys, the subject of the deposits, constituting the corpus of the trust estate before the court.

When the whole pleading is considered, it was broad enough to present the issues of fact covered by the evidence, on which the decree is rested. Equity will consider the full answer that justice be done in the premises, notwithstanding confusion or conflict contained in answers. Lynch v. Jackson, Ala.Sup., 177 So. 347; Southern Surety Co. v. Mobile Nat. Bank, 223 Ala. 463, 137 So. 297, and Tatum v. Commercial Bank & Trust Co., 193 Ala. 120, 69 So. 508, L.R.A.1916C, 767.

The facts averred and the evidence show that Bromberg by his conduct and declarations constituted himself a trustee of the fund in question and his heirs and personal representatives are bound thereby. Hodge v. Joy, supra.

Every case must stand upon and be governed by its facts. There is no ironclad rule. The positions taken in court and acts of estoppel, Ivy v. Hood, 202 Ala. 121, 79 So. 587, are binding upon parties, and upon privies in estate, and by blood, Clark et al. v. Whitfield et al., 213 Ala. 441, 105 So. 200.

Mr. Bromberg in the former cause dealing with these moneys treated himself as a trustee. He and his privies in estate are bound by this position taken in the former proceeding.

"It is a familiar statement of the law of estoppel that 'a party who has, with knowledge of the facts, assumed a particular position in judicial proceedings, is estopped to assume a position inconsistent therewith, to the prejudice of the adverse party.' 16 Cyc. 796; Taylor et al. v. Crook, Adm'r, 136 Ala. [ [354], 356, 378, 34 So. 905, 96 Am.St.Rep. 26; Eldridge v. Grice, 132 Ala. 667, 668, 32 So. 683; Schamagel v. Whitehurst, 103 Ala. 260, 263, 15 So. 611; Hodges v. Winston, 95 Ala. 514, 517, 11 So. 200, 36 Am.St.Rep. 241; Hill's Adm'r v. Huckabee's Adm'r, 70 Ala. [ 183], 184, 188; Boyett v. Standard C. & O. Co., 146 Ala. 554, 557, 41 So. 756; Ohio & M. Railway Co. v. McCarthy, 96 U.S. [ 258], 267, 24 L.Ed. 693." Brown v. French, 159 Ala. 645, 648, 49 So. 255; Mobile Towing & Wrecking Co. v. Hartwell, 208 Ala. 420, 95 So. 191.

"A defendant who, for the purpose of maintaining a defense, has deliberately represented a thing in one aspect, cannot be permitted to contradict his own representation by giving the same thing another aspect," at law or in equity. Hodges v. Winston, 95 Ala. 514, 517, 11 So. 200, 201, 36 Am.St.Rep. 241; Luling v. Sheppard, 112 Ala. 588, 593, 21 So. 352.

" 'A party who obtains or defeats a judgment, by pleading or representing a thing or judgment in one aspect, is estopped from giving it another in a suit founded upon the same subject-matter.' " Herman on Estoppel, § 165; Todd v. Interstate Mortgage & Bond Co., 196 Ala. 169, 174, 71 So. 661; Huntsville Belt Line & Monte Sano Railway Co. v. Corpening & Co., 97 Ala. 681, 684, 12 So. 295.

"When a party has defeated a judicial proceeding by alleging by pleading a particular state of facts, he can not be heard subsequently to deny or disprove these facts in defense of another proceeding." Taylor v. Crook, Adm'r, 136 Ala. 354, 356, 34 So. 905, 96 Am.St.Rep. 26; Luling v. Sheppard, supra; Mobile Towing & Wrecking Co. v. Hartwell, 208 Ala. 430, 95 So. 191; note, 34 L.R.A.,N.S., page 316; Estes Lumber Co. v. Investors' Syndicate, 223 Ala. 408, 137 So. 31; Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944; Robb v. Vos, 155 U.S. 13, 15 S.Ct. 4, 39 L.Ed. 52; Smith v. Boston Elevated Railway Company, 1 Cir., 184 F. 387, 37 L.R.A.,N.S., 429; note, 5 A.L.R. 1506."

Under the foregoing authorities, the excerpt to be made of Mr. Bromberg's evidence speaks for him. Said evidence was taken in the case of Frederick G. Bromberg et al. v. J. Bowen Wilson, in Mobile chancery court, case No. 5079. We quote from "Report of Frederick G. Bromberg, as Manager of Bowen & Murdock," which was made in the Mobile chancery court in case No. 5079. Among other things, the report states:

"My visits to the mines in Mexico enabled me to be in a position to advise in the making up of these leases as stated in my report.

"Mr. Torrey came here from Boston, Mr. Charles E. Torrey came from Mexico, and Mr. Charles Guggenheim came from New York. All the negotiations and all the preliminary writings were had in my office or in the hotel and all writings provided by myself represented not only Mr.

Torrey but also Mr. Cox and Mrs. Cox, and these I could not have done...