Howes v. Whipple

• Decision Date: 30 June 1870
• Citation: 41 Ga. 323
• Parties: MARY E. HOWES, executrix, plaintiff in error. v. B. A. WHIPPLE, administrator, et al., defendants.
• Court: Georgia Supreme Court

41 Ga. 323

MARY E. HOWES, executrix, plaintiff in error. v. B. A. WHIPPLE, administrator, et al., defendants.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1870.)

Equitable Lien. Distribution of Estates. Practice Supreme Court. Before Judge Robenson. Wilkinson Superior Court. April Term, 1870.

The administrator of A. C. Brown, deceased, filed a bill to marshal his assets, etc. All the questions of priority, etc., were settled by decree, except one made by Howes. He had filed a bill against the administrator, in which he made this case:

*On the 15th of February, 1867, he was in Macon selling mules. Brown desired to buy from him on credit ten mules, but Howes would not give credit. Thereupon Brown offered to ship to Howes twenty-eight bales of cotton, which he said he then had on his plantation in Wilkinson county, and Howes told him if he would ship the cotton to Hardeman & Sparks, warehousemen, of Macon, as their common agent, he would deliver him the mules at $2,100 00; Brown agreed to that and that the cotton should be sold in thirty days thereafter, and that Howes should have $2,100 00 out of the proceeds; Brown took the mules, and his administrator still has them. Soon after making said agreement, Brown was preparing to ship said cotton, had removed it from his plantation to the railroad, intending to perform said agreement, when he was suddenly killed. Whipple, Brown's administrator, refuses to pay the $2,100 00, deliver the cotton or give up the mules. Brown'sestate is insolvent. He prayed injunction against disposing of said cotton or its proceeds, or if it was sold and its proceeds gone, against disposing of the mules, and for relief generally. Howes died and his executrix was made complainant. When the cause came on for trial, it was admitted that an absent witness would swear to the trade as stated by Brown in his bill.

Sparks testified that Howes and Brown came to the warehouse of Hardeman & Sparks, Brown said he had bought some mules from Howes, had at home twenty-seven bales of cotton which he would ship to Hardeman & Sparks immediately, out of the proceeds of which they should pay Howes for the mules $2,100 00, and hold the balance, if any, for Brown. He said he was Brown's agent to sell and Howes' to pay for the mules.

The railroad agent testified that Brown, en route from Macon home, told him he had bought some mules at Macon and would have some cotton at the depot in a few days to ship to Hardeman & Sparks to pay for the mules. Early next week he began sending the cotton to the depot, and about eight days after he had been in Macon he was killed, never having countermanded said instructions. Twenty-eight bales *were sent to the depot, the last arriving on the day of Brown's death. Brown had told the agent to get the tag man to tag the cotton as soon as possible, and to ship them at once to Hardeman & Sparks. The first were marked A. C. B. They were not tagged till a few days after Brown's death. Whipple, as Brown's administrator, directed the cotton sent to another warehouse. Here Howes' case was rested.

The administrator showed that by the said decree he was ordered to hold funds sufficient to meet Howes' demand should he recover. He admitted that he received nine of said mules as Brown's administrator, one of which had died, that he sold the others for $1,190 00, and sold the cotton for $3,306 41, and so charged himself in his returns. Manson and wife et al., introduced evidence to show that they had a demand against Brown in a fiduciary capacity, and that it was of higher dignity than said claim of Howes'. Howes' counsel admitted that Manson and wife et al., were entitled to priority over any simple creditor of Brown's estate, but contended that Howes had such an interest in said cotton or its proceeds as that so much of it as would pay for the mules was not assets in Whipple's hands.

The Court explained to the jury the law as to the dignity of fiduciary debts in the distribution of the assets of an estate and said that the issue was whether Howes' claim was of equal dignity with the claims of Manson and wife et al. And he charged them that if it was part of the mule trade that Brown dedicated certain cotton to pay for the mules before Howes would deliver them, that he was to go home and ship the cotton to Hardeman & Sparks, as agents for both parties, and that said cotton was to be sold and the mule debt first paid out of the proceeds, then Brown was Howes' trustee as to $2,100 00 worth of the cotton, and at Brown's death the cotton was not assets in Whipple's hands until the trust was discharged. If the contract was as stated in the charge, and Brown went home and sent the cotton to the depot, had it marked A. C. B. and gave instructions to have the cotton sent to Hardeman & Sparks, and died without revoking said...