Day & Barclift v. Stewart

• Decision Date: 29 June 1918
• Docket Number: 8 Div. 89
• Citation: 80 So. 289,202 Ala. 229
• Parties: DAY & BARCLIFT et al. v. STEWART.
• Court: Alabama Supreme Court

80 So. 289

202 Ala. 229

DAY & BARCLIFT et al. v. STEWART.

8 Div. 89

Supreme Court of Alabama

June 29, 1918

Rehearing Denied Nov. 14, 1918

Appeal from Circuit Court, Morgan County; R.O. Brickell, Judge.

Suit by Day & Barclift against S.E. Stewart and J.L. Day; the latter filing a cross-complaint. From an order granting a motion of defendant S.E. Stewart, to dissolve an injunction against him, the plaintiffs and the cross-complainant appeal. Reversed, rendered, and remanded.

McClellan and Mayfield, JJ., dissenting in part.

Paragraph 2 of the original bill referred to in the opinion was as follows:

Thereafter the said J.R. White, having been and become largely indebted, in the sum of $1,400, to the firm of Day &amp Barclift, did on August 4, 1915, execute to the said J.L Day, the following instrument:

"State of Alabama, Morgan County. For and in consideration of an indorsement to be made by J.L. Day to the First National Bank of Hartselle, Ala., in order for me to secure loan for the payment of an account now due Day &amp Barclift, which account was made for supplies furnished me by Day & Barclift, to enable me to operate my stave and heading mill, I hereby agree to execute to the First National Bank of Hartselle, Ala., note for an amount to cover said account and that the said J.L. Day shall hold as security for his indorsement on said note a certain mortgage executed by me to J.L. Day and C.C. Doss, said mortgage holding in full all property and live stock as described therein against any liability that might be incurred by said J.L. Day for his indorsement on said note. J.R. White."

E.W. Godbey, of Decatur, for appellants.

Sample & Kilpatrick, of Cullman, for appellee.

McCLELLAN J.

The appellants are Day & Barclift, a partnership, original complainants, suing as such, and J.L. Day, cross-complainant. They assign errors separately. The only ruling presented for review through the assignments is the action of the court in granting the motion of appellee, S.E. Stewart, to dissolve the temporary injunction whereby S.E. Stewart was restrained from foreclosing a mortgage executed by J.R. White to him on January 8, 1913. J.L. Day was made a party defendant in the original bill. He answered, and constituted his answer a cross-bill. S.E. Stewart was made a defendant to the amended bill; he not being a party to the original bill. It may be that S.E. Stewart was not made a party defendant to Day's cross-bill, though the record does disclose that Day amended a "petition for a receiver" by making S.E. Stewart a party thereto. Apparently the petition referred to was a pleading or paper distinct from Day's cross-bill. The injunction was ordered issued, and was invited by the averments of the original complainant's pleading, and not by or through the averments of J.L. Day's cross-bill. Since J.L. Day was not a party complainant to the original or amended bill, and since the injunction was issued on the complainant's pleading, J.L. Day is not shown to have any right to complain of the action of the court in dissolving the injunction on S.E. Stewart's motion. It results that J.L. Day's assignment of errors cannot be justified.

The review here must be restricted to the action of the court in dissolving the injunction on Stewart's motion. With reference to the senior mortgage to S.E. Stewart, the amended bill's prayer, in the express alternative, is in these words:

"That the agreement of S.E. Stewart to transfer and assign said notes secured by said mortgage to Day & Barclift be specifically performed or in the alternative, that complainant be allowed to redeem and that said mortgage, when redeemed from, be foreclosed for their benefit. ***" (Italics supplied.)

The "agreement" with S.E. Stewart, the specific performance of which the complainants seek is thus described in paragraphs D and E of the amended bill, reading as follows:

"Par. D. Pending this suit, complainant and petitioners undertook to purchase said notes, with a view to redeeming from said mortgage, but were unable to satisfactorily assure themselves of the amount due on said notes. On July 10, 1916 said S.E. Stewart presented his affidavit in this cause opposing a receivership, wherein he declared the amount due to be $5,700. Negotiations to acquire said notes from him by complainant and petitioners followed; and on July 12th said Stewart announced that a mistake had been made, and that the real amount was between $6,200 and $6,300, although he had previously told John Hartselle, as complainant and petitioners are informed and believe, and therefore aver, that he would take $5,000. On the night of July 14, 1916, the complainant and petitioners agreed upon a trade for the said notes, at and for the sum of $5,500; this contract was consummated by and between said S.E. Stewart and J.L. Day, who came, then, around to the store of Day & Barclift, in Hartselle, and had P.W. Barclift witness the trade. On Saturday the contract was changed so that said notes were to be transferred to Day & Barclift, for $1,000 cash, and the remainder of the purchase money to be evidenced by Day & Barclift's further

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