Foxworth v. Brown

• Decision Date: 15 August 1898
• Parties: FOXWORTH v. BROWN ET AL.
• Court: Alabama Supreme Court

24 So. 1

120 Ala. 59

FOXWORTH v. BROWN ET AL.

Supreme Court of Alabama

August 15, 1898

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action by Francis G. Foxworth against Brown Bros. for moneys had and received. Verdict and judgment for defendants, and plaintiff appeals. Reversed.

There were several exceptions reserved by the plaintiff to rulings upon the evidence; but the facts pertaining thereto are sufficently stated in the opinion.

Upon the introduction of all the evidence the plaintiff requested the court to give to the jury the following written charges and separately excepted to the court's refusal to each of them as asked: (1) "If the jury believe the evidence in this case, they will find for the plaintiff." (2) "If the jury believe the evidence in this case, they will find for the plaintiff, unless they find from all the evidence before them that the plaintiff waived his lien as landlord upon the cotton grown in 1892 on the premises rented by him to J. P. Shamberger, and shipped by Shamberger to the defendants." (3) "If the jury believe from the evidence before them that Brown Bros., the defendants received cotton grown on the McNeil place during the year 1892 in payment of a mortgage indebtedness previously arising from J. P. Shamberger to them; sold said cotton and applied the proceeds thereof to the credit of such indebtedness,-then said defendants are not bona fide purchasers for a valuable consideration, entitling them to a notice of the landlord's lien on said cotton for his rent, and the plaintiff will be entitled to recover in this cause."

At the request of the defendants, the court gave to the jury the following charges, and to the giving of each of them the plaintiff separately excepted: (1) "If the jury believe from the evidence that the plaintiff consented to Shamberger shipping and selling the cotton raised upon the rented place before paying the rent, then they ought to find a verdict for the defendants, and such consent may be expressed or implied from the dealings between the parties." (2) "The court charges the jury that any statement that Shamberger may have made to the plaintiff to the effect that defendants had told him to ask plaintiff to extend the date of the payment of rent is no evidence, as against them, that defendants sent plaintiff any such message, and should not be considered by the jury as evidence that defendants sent any such message." (3) "The court charges the jury, that if defendants had no knowledge or notice of plaintiff's lien for rent, or of facts putting them upon inquiry as to such lien, the jury ought to find a verdict for defendants." (4) "The court charges the jury that if they believe from the evidence, that Shamberger shipped his cotton to defendants, and that they sold the cotton and accounted to Shamberger for it by applying part of the proceeds to the payment of Shamberger's debt to defendants, and by paying Shamberger's drafts for the balance before plaintiff demanded his rent of defendants, the jury ought to find a verdict for defendants, unless they further believe that defendants knew that part of the cotton was raised upon rented land, or had notice of the fact that would reasonably put a merchant upon inquiry as to such rental, and which, if followed up by diligent inquiry, would have resulted in knowledge on the part of defendants of such renting, and the burden of proving such knowledge or notice would, under the circumstances stated above, be upon the plaintiff."

There were verdict and judgment for the defendants. The plaintiff appeals, and assigns as error the several rulings upon the evidence to which exceptions were reserved, and the refusal to give the charges requested by him, and the giving of the charges asked by the defendants.

J. M Miller and Clarkes & Webb, for appellant.

Gregory L. & H. T. Smith, for appellees.

HARALSON J.

This is an action by the appellant, F. G. Foxworth, against the defendants, Brown Bros., for money had and received by them for the use of the plaintiff.

1. The cause of action, as developed on the trial, originated in this wise: The plaintiff rented to one Shamberger for the year 1892, his plantation in Wilcox county, Ala., known and called the McNeil place, for the sum of $500. Shamberger procured advances from the defendants in that year, and gave them a mortgage on his crops to be grown the same year, to secure the advances. He shipped the cotton he raised to defendants, without having paid his rent to plaintiff, and they sold the same and appropriated the proceeds to their own use, in the payment of Shamberger's mortgage indebtedness to them, with knowledge of the fact, as plaintiff insists, or with sufficient notice of facts to put them on inquiry to ascertain the fact, that plaintiff owned the plantation on which the cotton was raised and had a lien on it for the payment of his rents. Shamberger testified, that defendants advanced to him that year about $1,000, and that the proceeds of the cotton shipped during the year to defendants were placed to the credit of that sum so advanced to him by them; and that he also gave drafts on them for other accounts due up the country; that when defendants sold said cotton, they made account sales of it to him, and placed the amount due him to the credit of the money previously advanced to him; that in the year 1892 he shipped to defendants between 30 and 40 bales of cotton grown on the plaintiff's McNeil place, which was all sold by them before the 1st of January, 1893, and that the net proceeds of the cotton was over $25 a bale. He further testified that the plaintiff did not give his consent for him to ship the cotton before paying the rent.

2. In order to show notice to defendants of the plaintiff's lien for rent, he sought to introduce evidence tending to show, that said Shamberger had rented said McNeil place from plaintiff in 1891; that defendants had made advances to him for that year, to secure which Shamberger gave them a mortgage on the crops grown on said place; that he had done the same thing for the year 1892, and that defendants knew that said cotton was raised on plaintiff's said plantation. The witness testified without objection, that for each of the years, 1891 and 1892, he gave defendants a mortgage for advances made to him by them, in each of said years. He was asked as to each of said years, if he gave to defendants a mortgage on the crops grown on the McNeil place. These questions were each objected to by defendants, on the ground, that they called for secondary evidence, and no proper predicate had been laid for its introduction; that the contents of the mortgage could not be given by the witness. Th evidence proposed was not subject to the objections interposed. The gravamen of the suit was, that the defendants had received cotton grown upon the rented land of the plaintiff, and sold and received the money for it, and appropriated it to their own use, with notice of the plaintiff's line on it for rent. When the case was here on a former appeal (114 Ala. 299, 21 So. 413), we held, in repetition of what had been frequently held before, that actual knowledge is not necessary to charge a purchaser of cotton from the tenant with notice of the landlord's lien on the same; that whatever is sufficient to put him on inquiry, is also sufficient to charge him with notice ( Lomax v. Le Grand, 60 Ala. 537; Townsend v Brooks 76 Ala. 311; Warren v. Barnett, 83 Ala. 208, 3 So. 609); and that if the purchaser have knowledge of facts sufficient to excite such inquiry, or a knowledge of facts, which would naturally and reasonably be calculated to arouse suspicion of the main fact, notice of which is sought to be charged to him, the duty of inquiry exists and he must exercise it. Kyle v. Ward, 81 Ala. 120, 1 So. 468. The mortgage inquired about, could not have defined and determined the relative rights of the parties to this suit. It was by a third party to the defendants, and not by plaintiff to them, and was not a main issue in the cause. The purpose of its introduction was to show that the defendants had notice that the cotton was raised on plaintiff's McNeil farm, or gave them notice of a fact which, if followed up, would have given them knowledge of facts calculated to put them on...