Brown v. Thomas

• Decision Date: 01 May 1919
• Docket Number: 4 Div. 762
• Citation: 81 So. 635,202 Ala. 679
• Parties: BROWN v. THOMAS et al.
• Court: Alabama Supreme Court

81 So. 635

202 Ala. 679

BROWN v. THOMAS et al.

4 Div. 762

Supreme Court of Alabama

May 1, 1919

Appeal from Circuit Court, Dale County; J.S. Williams, Judge.

Suit by B.S. Brown against D.T. Thomas and others. Decree for defendants, and complainant appeals. Affirmed.

H.L Martin, of Ozark, for appellant.

J.E.Z Riley, of Ozark, for appellees.

SAYRE J.

Complainant appellant, sold a stock of goods to the defendant Thomas and the parties arranged for a payment of the purchase price in the manner following: Defendant owned a mortgage on real and personal property which had been given by Pilcher and wife to secure an indebtedness in excess of the agreed price of the stock of goods. This mortgage indebtedness was not yet due had yet 30 days to run, and the mortgage was in the custody of Munn, who was keeping it for defendant. The parties agreed that for his stock of goods complainant should have an interest in the mortgage equal to the agreed purchase price, and that Munn should continue to hold the mortgage for the parties according to their respective interests until its due date, when he should collect for their benefit.

The evidence tends to show that Munn agreed to this arrangement. As a part of the arrangement complainant agreed to deposit the sum of $200 with the bank of which Munn was cashier; the purpose of this deposit being to indemnify defendant against claims to the payment of which it was anticipated creditors of complainant might seek to subject the stock of goods. Neither the pleading nor the proof further defines the form the deposit was to take, but it may be assumed that it was to be so arranged as to be accessible with reasonable convenience to the defendant in the event the thing happened it was intended to indemnify against; certainly, at the very least, it must be inferred that the deposit was to be accessible on the joint demand of the parties to the sale. Complainant deposited $200 to the credit of his daughter. Not otherwise did he comply with the stipulation for a deposit and this was no compliance. Shortly after the mortgage debt fell due defendant demanded and received of Munn the mortgage, assigned it to Jno. E. Riley, who thereupon foreclosed by a sale under the power at which the wife of defendant became the purchaser. Possession having been demanded of them, the Pilchers, on December 31, 1908, redeemed from Mrs. Thomas. This bill had been filed November 25th, and Thomas, to whom we have heretofore referred as the defendant, his wife, Munn, Mrs. Riley, the...