Commercial Casualty Ins. Co. v. Isbell Nat. Bank

• Decision Date: 14 May 1931
• Docket Number: 7 Div. 985.
• Citation: Commercial Casualty Ins. Co. v. Isbell Nat. Bank, 223 Ala. 48, 134 So. 810 (Ala. 1931)
• Parties: COMMERCIAL CASUALTY INS. CO. v. ISBELL NAT. BANK.
• Writing for the Court: BROWN, J.
• Court: Alabama Supreme Court

134 So. 810

223 Ala. 48

COMMERCIAL CASUALTY INS. CO. v. ISBELL NAT. BANK.

7 Div. 985.

Supreme Court of Alabama

May 14, 1931

Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.

Action by the Commercial Casualty Insurance Company against the Isbell National Bank. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Merrill Jones & Whiteside, of Anniston, for appellant.

Harrison & Stringer, of Talladega, for appellee.

BROWN J.

In the case presented on the former appeal it appeared that the money, the proceeds of the check, was at the commencement of the suit in the hands of the defendant bank, and on the case made by the pleadings, consisting of the common counts special count in assumpsit, plea 11 and replication 4 thereto it was held that "no reason appears why plaintiff should not recover." Commercial Casualty Insurance Co. v. Isbell National Bank, 220 Ala. 179, 124 So. 413, 415.

Along with other facts, it was alleged in the special count "that at the time the said W. S. Gillam received said checks he was acting for the East Side Packing Company under a contract between said Gillam and D. K. Miller, dated June 19th, 1922, a copy of which contract is hereto attached and marked 'Exhibit A,' and at the time of the execution of said contract with Gillam, and at the time said checks were received by said Gillam the said Miller was acting under a contract with the East Side Packing Company, a copy of which is hereto attached and marked 'Exhibit B,' which said exhibits are made a part of this complaint; that said checks were delivered to the said Gillam as payment on account due the East Side Packing Company by the drawers of said checks."

It was further alleged in said count that Gillam, using his trade-name, "Gillam Brokerage Company," indorsed said checks "East Side Packing Company for deposit, The Isbell National Bank," and the bank collected the money from the drawees, and retained it in its possession.

The legal effect of these averments, as the court held, was that the money so in the bank's possession was the money of the payee, the East Side Packing Company, constituting a liability purely ex contractu, which had been assigned or transferred by the owner of the contract obligation to the plaintiff. There was nothing in this situation that in any way impinged the rule against champerty, which prevents the assignment of a cause of action arising ex delicto. 5 C.J. 885, §§ 50, 51. The rule is stated in the following cases: Foy v. Cochran, 88 Ala. 353, 6 So. 685; Alabama State Bank v. Barnes, 82 Ala. 607, 2 So. 349; Dunklin v. Wilkins, 5 Ala. 199; Prouty v. Alabama Great Southern Railway Co., 174 Ala. 404, 56 So. 980; Sylacauga Lodge, No. 200, F. & A. M., v. McGhee, 17 Ala. App. 52, 81 So. 689.

After the remandment of the case, and on the last trial, the plaintiff amended its complaint by withdrawing the special assumpsit count and adding counts 6, 7, and 8, which appear in the reporter's statement. And after plaintiff's demurrers to the defendant's special pleas D, E, F, and G were overruled, the plaintiff again amended its complaint by withdrawing the common counts, including the count for money had and received, leaving in the complaint counts 6, 7, and 8.

The plaintiff then filed replications to the defendant's special pleas, and, demurrers to these being sustained, it took a voluntary nonsuit.

Whatever may be said of special counts 6, 7, and 8, the basis of plaintiff's case on this record, it seems they were treated by the trial court as special counts for money had and received, and will be so treated here.

Coming to the sufficiency of the pleas as a defense to the case made by these counts, it appears from the "Memorandum of Agreement," made Exhibit B, to counts 6, 7, and 8, that D. K. Miller was the general agent of the East Side Packing Company to receive, store, deliver, collect, and account for, in its name, all products consigned to and disposed of by him or others for him and by his authority, on a commission basis of $1 per hundred weight on all products except dry salt meats and lard, on which he was to receive 75 cents per hundred weight. He had authority to receive payments for goods disposed of and make deposits thereof for and in the name of said packing company in Anniston National Bank, sending copy of all such deposits to said packing company, showing from whom collections were made.

By "Memorandum of Agreement," Exhibit A, said Miller employed said Gillam to offer and sell such packing house products as said Miller might desire to offer through Gillam to dealers in certain of Miller's territory, Gillam to mail orders direct to the packing house as directed by Miller, and shipments were then made direct to customers carbon copies of which were mailed daily to Miller. Gillam was authorized by Miller to " collect the amounts and render party of the second part [Miller] a statement of such collections, with the checks...