Butler v. Savannah Guano Co.

• Decision Date: 07 February 1899
• Citation: 25 So. 241,122 Ala. 326
• Parties: BUTLER ET AL. v. SAVANNAH GUANO CO.
• Court: Alabama Supreme Court

25 So. 241

122 Ala. 326

BUTLER ET AL. v. SAVANNAH GUANO CO.

Supreme Court of Alabama

February 7, 1899

Appeal from circuit court, Henry county; J. W. Foster, Judge.

Action by Butler & Stevens against Nicholson, Blount & Co., seeking to recover upon certain promissory notes. The plaintiffs sued out a writ of garnishment, which was served upon one J. R Faircloth. The garnishee, Faircloth, answered the writ orally in open court, admitting that he was indebted to the defendants, but suggested that the Savannah Guano Company claimed the amount due from him to the defendants. Thereupon the defendant the Savannah Guano Company propounded its claim in writing, and verified the same by affidavit. Issue was made up between the plaintiffs and the claimant, and the cause was tried upon an agreed statement of facts, which showed the following facts in addition to those above set out: On November 30, 1896, the defendants Nicholson, Blount &amp Co. and the claimant, the Savannah Guano Company, entered into a contract by which it was agreed that the guano company would consign a certain number of tons of fertilizer to Nicholson, Blount & Co., in trust for sale on commissions and that in making the sale of the fertilizer the said Nicholson, Blount & Co. were acting as agents for the Savannah Guano Company. It was stipulated in said contract that Nicholson, Blount & Co. were to pay over to the guano company all moneys collected by them from the fertilizer when sold for cash, and to deliver notes of purchasers to the guano company. During the existence of this contract Nicholson, Blount & Co. sold and delivered to the garnishee, Faircloth, a number of tons of guano, which were a part of the guano consigned to Nicholson, Blount & Co. by the Savannah Guano Company, and the money admitted to be due by Faircloth is the purchase price of the fertilizer sold him by the defendants out of the lot of fertilizer shipped the latter by the claimant under said contract. As is stated in the opinion, the bill of exceptions states that the court gave the general affirmative charges requested by the claimant, and refused a similar charge requested by the plaintiffs, but the judgment entry recites that the cause was tried by the court without the intervention of a jury upon an agreed statement of facts. There was judgment for the claimant. The plaintiffs appeal. Affirmed.

B. I. Moody and M. E. Milligan, for appellants.

H. A. Pearce, for appellee.

DOWDELL J.

As appears from the record, both by recitals in the bill of exceptions and in the judgment entry rendered by the court, the cause was submitted and tried in the court below upon an agreed statement of facts. And the judgment entry further shows that the court decided the cause without the intervention of a jury, rendering judgment in favor of the claimant. The bill of exceptions also states that the court gave the general affirmative charge requested in writing by the claimant, and refused a like charge requested by the plaintiffs.

The fact that a cause was submitted to and tried by a jury, or tried by the court without a jury, constitutes a proper recital to be contained in a judgment entry. Where a conflict arises between recitals in the bill of exceptions and the judgment entry as to a matter which should be contained and set out in the judgment, as a general rule the recitals in the latter will prevail. Danforth v. Railway Co., 93 Ala. 614, 11 So. 60; Courie v. Goodwin, 89 Ala. 569 8 So. 9. But, while there is an evident inconsistency between the bill of exceptions and the judgment entry as to whether the...