Carpenter v. Greene County

• Citation: 29 So. 194,130 Ala. 613
• Parties: CARPENTER v. GREENE COUNTY.
• Decision Date: 22 January 1901
• Court: Alabama Supreme Court

29 So. 194

130 Ala. 613

CARPENTER v. GREENE COUNTY.

Supreme Court of Alabama

January 22, 1901

Appeal from circuit court, Greene county; S. H. Spratt, Judge.

Suit by S. J. Carpenter against Greene county. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This was a suit brought by S. J. Carpenter on the 30th day of June, 1897, in the circuit court of Greene county, against Greene county, to recover upon three interest coupons attached to three certain bonds of said county, issued for stock in the Selma, Marion & Memphis Railroad Company. The case was tried upon the defendant's sworn plea, denying the plaintiff's ownership of the legal title to the coupons sued on at the institution of the suit, and upon the agreement of plaintiff's counsel that defendant might plead the general issue, with leave to give in evidence any facts that will constitute a defense to the action, as if specially pleaded, with leave to the plaintiff to give in evidence any facts that would constitute a good replication as if specially pleaded. The complaint contained three counts, each seeking a recovery of $20, with interest, on a coupon executed by the defendant, and attached to a certain bond of Greene county. The three coupons were identical except that each contained the number of the bond from which it was taken, the numbers being 48, 49, and 50, respectively. The plaintiff produced in court and introduced in evidence the three coupons, as also the three bonds from which they were taken. The coupons were payable to the holder at the office of the Selma, Marion & Memphis Railroad Company, in the city of Memphis, Tenn., or their agency in the city of New York, in the state of New York. Each bond is signed by A R. Davis, the then judge of said county. It was admitted by counsel for the defendant county that Judge A. R. Davis executed said bonds and coupons, although counsel stated that the county denied his legal authority to do so. The plaintiff introduced in evidence the record of the court of county commissioners of Greene county, which showed that the Selma Marion & Memphis Railroad Company, in pursuance of the provisions of an act of the legislature of the state of Alabama entitled "An act to authorize the several counties and towns and cities of the state of Alabama to subscribe to the capital stock of such railroads throughout the state, as they may deem most conducive to their respective interests," approved December 31, 1868, proposed to the county of Greene to subscribe for and take $80,000 of the capital stock of said railroad company, at $50 per share, to be paid in the bonds of said county, payable to the said railroad company or bearer, 20 years after date till paid, with interest coupons attached; that thereupon the commissioners' court of said county, on the 9th day of August, 1869, made an order by which said proposition was submitted to the qualified electors of said county, at an election to be held at the several precincts of said county on the 14th of September, 1869, after giving 30 days' notice thereof as required by law; that such election was held on the 14th day of September, 1869, in pursuance of said order, at which election, according to the returns thereof, the result was in favor of the proposition and subscription, the vote for subscription being 1,011, and the vote against subscription being 550; and that thereupon said court ordered that the proposition and returns of election be recorded, that the proposition be accepted, "and that the said court of county commissioners are hereby authorized and do make, in the name and for the said county of Greene, the said subscription of eighty thousand dollars to the capital stock of said company." It was further ordered that the bonds of said county of Greene, in the sums of $500 each, with interest coupons attached, payable to said company or bearer at the office of said company, or at their office or agency in the city of New York, be issued and delivered to said company, signed by the probate judge of said county, and that the coupons thereto attached, of $20 each, shall be signed by said judge, payable in like manner on the 1st days of January and July of each year. The plaintiff also introduced in evidence an act of the legislature of Alabama, from Acts 1869-70, p. 286, an act to legalize, ratify, and confirm all acts and things of every kind heretofore done and performed in this state, in substantial compliance with an act of the general assembly of Alabama entitled "An act to authorize the several counties and towns and cities of the state of Alabama to subscribe to the capital stock of such railroads throughout the state as they may consider most conducive to their respective interests," approved December 31, 1868, which act of ratification was approved March 1, 1870. And the plaintiff introduced in evidence another act of the legislature of Alabama (Acts 1869-70, p. 305), entitled "An act to ratify the elections held in the towns of Greensboro and Eutaw, and in the counties of Hale, Greene and Pickens, to subscribe stock to the Selma, Marion & Memphis Railroad Company," which act of ratification was approved March 3, 1870. It recites the said election, and the number of votes that were cast, and affirms that a majority of the votes cast at each of said elections were in favor of subscription, and it is provided that said elections are, and each of them is, hereby ratified and made valid in all respects and particulars.

The plaintiff, S. J. Carpenter, testified as follows: "At the time this suit was brought, the bonds and coupons introduced in evidence were in the hands of my attorneys. Shortly before this suit was brought I turned them over to said attorneys to bring this suit. At the time I turned them over to my said attorneys I was in possession of said bonds and coupons, claiming to own them. I was the holder and bearer thereof." Upon cross-examination he testified as follows: "The bonds and coupons were delivered to me by Mr. Judah Moses, of Montgomery, Ala., shortly after the case of Greene Co. v. Kortrecht, 81 F. 241, 26 C. C. A. 381, was tried in the United States court at Birmingham; said suit having been brought on two of the same issue of bonds, and having been tried in December, 1896. I was residing in Montgomery at the time the suit of Kortrecht was tried, but had resided there only a short time. I was, for a long time before I moved to Montgomery, a resident of Greene county, and knew that Greene county had denied that it was liable to pay the bonds and coupons introduced in evidence in this case, before I became possessed of them. I did not pay said Moses anything for said bonds and coupons. Mr. Moses delivered the said bonds and coupons to me, with authority to collect them, telling me that he would give me 10 per cent. of the amount that I collected on the same for my trouble, and also expenses. It was in this way that I became possessed of the bonds, and this is the only interest that I have in them. I did tell Judge Smith, of Greene county, that I had these bonds from a party in Montgomery for collection, and that I would get a good commission for collecting them. This conversation occurred in Eutaw before this suit was brought. Judge Smith told me in that conversation that Greene county would not pay the said bonds and coupons, because the county denied its liability on the bonds, and did not regard the present holders of the bonds as innocent holders of them." Upon re-examination, he further testified as follows: "When Mr. Moses delivered the bonds to me he was in possession of them, claiming to own them. He authorized me to collect them, sue upon them in my own name if I saw proper, or to compromise with the county, as I deemed best. He said to me: 'They are your bonds; collect, compromise, or sue for them in your own name, as you deem best.' It was agreed between us at the time that I was to retain out of my collections made on said bonds and coupons the cost of collection, including any attorney's fees I might incur, and my commissions of ten per cent., and the balance was to be paid by me to said Moses. It is by virtue of that contract that I have brought this suit, and am now possessed of said bonds." The only other evidence bearing on the question of ownership of the legal title was that of the witness A. P. Smith, who testified for the defendant, and whose evidence related to a conversation had with the plaintiff before the institution of this suit.

The defendant read in evidence an agreement of counsel, which sets forth, in substance, the following: That only one election on subscription to railroad stock was held in Greene county, and no other issue of bonds was ever made by said county than the series of which those form a part, from which the coupons sued on are taken; that certain witnesses, if present, would testify, in substance, that Gen. Forrest president of said railroad company, represented to the people of Greene county, previous to the election, and in several speeches he made to them pending the election, that if they would vote for the subscription the said railroad company would use the money arising from the sale of the bonds in Greene county in constructing the railroad through that county, and if they voted for the subscription said company would construct and operate a railroad through Greene county, which would run from Memphis, Tenn., to Selma, Ala.; that said company never built any railroad in Greene county, and that the money arising from the sale of the bonds voted at said election was not used to build any railroad in Greene county, Ala.; that certain witnesses, Smith, Roberts, and Barnes, officers of Greene county, did not have in their possession any certificates of the capital stock of said...