Henderson v. Gilliland
| Decision Date | 18 June 1914 |
| Docket Number | 722 |
| Citation | 65 So. 793,187 Ala. 268 |
| Parties | HENDERSON v. GILLILAND et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.
Bill by Mattie Henderson against A.L. Gilliland and others. Decree for defendants, and plaintiff appeals. Affirmed.
Carmichael & Wynn, of Birmingham, for appellant.
Tillman Bradley & Morrow, M.M. Baldwin, and J.A. Simpson, all of Birmingham, for appellees.
This bill is filed by Mrs. Henderson, appellant, against A.L Gilliland and G.N. Henderson; and its purpose is to effect the restoration to complainant of a certain note, a negotiable instrument, and mortgage to secure it, which complainant assigned by indorsement only, and which was delivered, by G.N. Henderson, to Gilliland as security for the payment of notes, aggregating $500, executed by complainant's son, G.N. Henderson, to Gilliland. The consideration for the notes to Gilliland, executed by G.N Henderson, was five shares of stock in a corporation styled the Tomlin Mercantile Company, of a par value of $100 the share. It seems to have been assumed, if not expressly understood, by both Gilliland and G.N. Henderson, as well as by W.B. Tomlin, the major stockholder and president of the company, that the purchase of the stock by G.N. Henderson would carry with it the substitution of G.N. Henderson for Gilliland as the bookkeeper of the concern at a salary of $75 per month. G.N. Henderson was unable, out of his own resources, to pay cash for the stock or to furnish the security demanded by Gilliland. His mother (complainant) held a note and mortgage, given by Tolbert and wife, to her, for about $575. In order to enable her son to effect the purchase of the stock, she, upon the earnest insistence of her son, G.N. Henderson, and upon the direct recommendation of Tomlin, who was Gilliland's father-in-law and with whom Gilliland occupied their dwelling, indorsed the note and mortgage which her son delivered to Gilliland as security for the payment of his notes to Gilliland.
The restoration prayed to be effected is based upon the allegation of fraud, of misrepresentation: First, by Tomlin and Gilliland as the expression of a conspiracy between them to induce complainant's assignment of the note and mortgage as security for G.N. Henderson's notes; or, second, that Gilliland made, knowingly, false representations to G.N. Henderson "for the purpose of inducing him to purchase said shares of stock," and to give him security for the payment of the purchase price, with full knowledge at the time that said stock was worthless.
There is another aspect predicated of the theory that the indorsement stated effected to bring complainant into a relation to Gilliland whereby she would be made to answer for the debt, default, or miscarriage of her son in...
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Belcher v. Birmingham Trust National Bank
...as a fiduciary, the duty of utmost frankness and fair play. Bogert on Trusts, Section 593. Fraud is never presumed. In Henderson v. Gilliland, 187 Ala. 268, 65 So. 793, the court "Fraud is never presumed; and to be accepted as the basis of judicial action `must be proved by clear and satisf......
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McCain v. Cochran
...S.W. 962; Wolf v. Lawrence (Ill.), 114 N.E. 567; Nelson v. Drake (Idaho), 130 P. 85; Everist v. Drake (Colo.), 143 P. 811; Henderson v. Gilliland (Ala.), 65 So. 793. It next contended by appellants that the court erred in granting an instruction for the appellees as follows: "That if you be......
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Wilfred Moncion v. Oliva Bertrand
... ... constructions, the one which will free it from imputation of ... fraud must be adopted. Henderson v ... Gilliland, 187 Ala. 268, 65 So. 793; ... McKennan v. Mickelberry, 242 Ill. 117, 89 ... N.E. 717; Gormley v. Dangel, 214 Mass. 5, ... 100 ... ...
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Moncion v. Bertrand
...is fairly susceptible to two constructions, the one which will free it from imputation of fraud must be adopted. Henderson v. Gilliland, 187 Ala. 268, 65 So. 793; McKennan v. Mickelberry, 242 Ill. 117, 89 N. E. 717; Gormley v. Dangel, 214 Mass. 5, 100 N. E. 1084. See 12 R. C. L. 426. And it......