Clanton Bank v. Robinson

• Decision Date: 25 November 1915
• Docket Number: 5 Div. 584
• Citation: 70 So. 270,195 Ala. 194
• Parties: CLANTON BANK v. ROBINSON.
• Court: Alabama Supreme Court

70 So. 270

195 Ala. 194

CLANTON BANK v. ROBINSON.

5 Div. 584

Supreme Court of Alabama

November 25, 1915

Appeal from Circuit Court, Chilton County; W.W. Pearson, Judge.

Action by the Clanton Bank against W.C. Robinson. From judgment for defendant, plaintiff appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts of 1911. Affirmed.

Middleton & Reynolds, of Clanton, for appellant.

Rushton Williams & Crenshaw, of Montgomery, for appellee.

GARDNER J.

Suit by appellant against appellee on account. The account, if existing, was originally made by the defendant, Robinson with the Chilton Warehouse & Manufacturing Company. The right of action on the part of the plaintiff bank rests upon its contention that said account of defendant was transferred or pledged to it as collateral security for a loan to said Chilton Warehouse & Manufacturing Company.

The defendant pleaded the general issue, payment, and the further plea that the plaintiff was not the owner of the account sued on. Upon the trial of the cause there was judgment for the defendant, the affirmative charge being given by the court in his behalf; and from this judgment this appeal is prosecuted.

There does not appear to have been any transfer in writing of any such account as here sued upon. The Chilton Warehouse &amp Manufacturing Company was a corporation, and some of the directors testified that a resolution was adopted at a meeting on March 7, 1912, transferring all notes and accounts of said warehouse company then in hand or thereafter to be acquired during the year 1912, as collateral security for a loan to be made by the plaintiff bank. The books of said warehouse company and its minutes disclose no such resolution.

In the case of Perry v. Thompson, 108 Ala. 586, 18 So. 524 (the only authority cited by counsel for appellant in support of their contention), there was an assignment of the account or debt in writing, and which was recognized by the debtor. This authority therefore is of no aid to us in the present case, where no such transfer or assignment in writing appears.

It further appears from the testimony of the witness Mullins president of plaintiff bank, that at the time above referred to defendant, Robinson, had no such account with the warehouse company, and it is nowhere made to appear that he had agreed to, or contemplated, any purchase or any transaction out of which such an account could have arisen, and it was therefore without potential existence. Skipper v. Stokes, 42 Ala. 255, 94 Am.Dec. 646; Purcell v. Mather, 35 Ala. 570, 76 Am.Dec. 307; Wellborn v. Buck, 114 Ala. 277, 21 So. 786; Shackelford v. Kiser, 131 Ala. 224, 31 So. 77; Speilberger v. Brandes, 3 Ala.App. 590, 58 So. 75. No valid assignment was shown.

The contention is made that plaintiff may recover upon its rights as pledgee of the account.

"The requirement that possession must be delivered and retained in order to sustain the validity of a pledge distinguishes it from a mortgage." 31 Cyc. 800.

"The delivery of possession of the goods to the pledgee may be actual, constructive, or symbolical, but it must be clear, unequivocal, complete, and effective at all times so as to give notice to third parties of the pledgee's rights. *** A mere agreement by the debtor that the creditor shall take and hold certain property as security for his

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