Dowling v. Parker, 4 Div. 478.
| Decision Date | 10 April 1930 |
| Docket Number | 4 Div. 478. |
| Citation | 221 Ala. 63,127 So. 813 |
| Parties | DOWLING ET AL. v. PARKER ET AL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Dale County; J. S. Williams, Judge.
Action on a check by Wilmer Parker and Grover Flowers, doing business as Parker & Flowers, against H. H. Dowling and R. A Dowling, doing business as H. H. Dowling & Bro. Judgment for plaintiffs, and defendants appeal. Transferred from Court of Appeals.
Affirmed.
Chas O. Stokes, of Ozark, and Weil, Stakely & Cater, of Montgomery, for appellants.
Sollie & Sollie, of Ozark, for appellees.
A mortgagor, still in possession of a mortgaged mule negotiated a sale of same. After agreeing on the price, the mortgagor and the purchaser went to the mortgagee to arrange the satisfaction and release of the mortgage. By mutual agreement the purchaser made the check for the price payable to the mortgagee. The check being slightly in excess of the mortgage debt, the mortgagee paid to the mortgagor the difference in cash and surrendered to him the mortgage as paid.
The purchaser took possession of the mule, and on putting her to work discovered she was subject to the disease called "choking," was worthless, and died within a few days.
On discovery of the condition of the mule, the purchaser notified the payee of the check and demanded a rescission, which was refused. He notified his banker not to honor the check. This is a suit on the check by payee against maker. Defendant appeals.
The evidence discloses the above-stated facts without substantial conflict, except as to whether the mule was so diseased when sold. This issue was submitted to the jury.
While there was no direct evidence that the mortgagee participated in the sale other than as above shown, the trial court submitted such inquiry to the jury.
The mortgagee denies any knowledge or information of the diseased condition of the mule. We find no evidence that he did have such information.
The assignments of error present certain refused charges drawn upon the theory that, if the mule was diseased and worthless, there was an entire failure of consideration, and plaintiff cannot recover.
When, by the terms of sale, the purchaser, as a consideration for the purchase, assumes the payment of an indebtedness due from the seller to a third person, or assumes the payment of an incumbrance on the property, without more, the rights of the creditor or incumbrancer are derivative, and subject to all defenses between promisor and promisee.
But when by agreement all round the creditor or...
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