Jackson v. State

• Decision Date: 21 December 1911
• Citation: 57 So. 110,2 Ala.App. 226
• Parties: JACKSON v. STATE.
• Court: Alabama Court of Appeals

57 So. 110

2 Ala.App. 226

JACKSON v. STATE.

Court of Appeals of Alabama

December 21, 1911

Appeal from Circuit Court, Clarke County; John T. Lackland, Judge.

Dudley Jackson was convicted of embezzlement, and appeals. Affirmed.

The contract referred to in the opinion is as follows "Tennessee Valley Fertilizer Company, Florence, Ala 12/7/1908. To D. B. Jackson, Fulton, Ala.--Dear Sir: I hereby offer to ship you, for Tennessee Valley Fertilizer Company the following fertilizers on the terms and at the price hereinafter named: 30 tons, 10-2-2 at $20.94 per ton, 30 tons 12-2, at $16.94, per ton, or 30 tons, 14% at $14.69 per ton. Upon delivery of the goods you are to give your note or notes for the purposes hereinafter named to cover the invoice price, payable to the order of the Tennessee Valley Fertilizer Company at Alabama Trust & Savings Bank, Florence Ala., and to mature as follows: 1/3 Nov. 1, 1909; 1/3 Nov. 15, 1909; and 1/3 Dec. 1, 1909. Deliveries to be made by us in car lots as you may direct on cars or boats at Florence, Ala., not later than May 1, freight prepaid to Fulton, Ala. The goods are not to be shipped until so ordered by you; and our obligation to deliver may be canceled by the destruction of our works by fire or other providential causes, including accidents, labor strikes, or delays in transportation. This contract is nontransferable, except by the written consent of both parties hereto. You strictly agree not to sell or deliver our fertilizer to any person on a credit without first taking note on the form to be furnished by us. Notes or other obligations taken by you in settlement in part or whole for fertilizer shipped you under this contract shall not be pledged with any bank or other party without the written consent of this company. On May 1, or sooner, if possible, you agree to deliver to us, or our order, notes of the planters or other purchasers to whom you may have sold these goods for the gross amount of the sales of the same to be held by us as collateral security for the payment of your obligation to us. You are to give us a receipt for said collateral when same is returned to you for collection. All of said goods and all of customers' obligations therefor, as also all proceeds therefrom, are to be held in trust by you for us until your indebtedness to us is fully paid, and, further, all proceeds of said goods as collected must be first applied to the payment of your notes or obligations to us, whether the same have matured or not, such payments, however, to draw the legal rate of interest from the time of payment to the maturity of note. In case you fail to carry out any or all of the provisions and agreements in this contract, then the debt arising under this contract becomes at once due and payable, whether the same shall be closed by note or otherwise, and any and all goods, money, notes, and accounts you have received shall be considered to have been received by you as our agent, and we can demand immediate settlement of all transactions between us under this contract, and as to the obligations herein contained you waive all right of exemption under the laws of Alabama, or any other state, and you agree to pay all cost of collection, including a reasonable attorney's fee. It is further agreed that any and all goods shipped you in excess of the quantity herein mentioned, whether same goods or not, you are to receive subject to all conditions of this contract, unless otherwise provided for in writing, and you agree to handle our goods exclusively this season. It is further expressly agreed and understood that each and every car or shipment under this contract is distinct and separate from every other shipment, and in the event of any misunderstanding arising about any shipment it shall apply only to shipments which are questioned, and each and every complaint, if any is made, shall be specific as to shipment and cause of complaint. We reserve the right to cancel this contract, or any part thereof, in case of any occurrence which we regard as unfavorable to your credit. No verbal understanding will be recognized by either party hereto. This contract expresses all the terms and conditions agreed upon, and becomes binding when approved by the home office. [ [Signed by both parties.]" The letters referred to had reference to the signing of certain notes, the shipment of certain guano, and some have reference to the shortness of the crop and the fact that the defendant had not been able to make any collections. The argument of the counsel excluded was that the defendant would, if convicted, suffer imprisonment in the penitentiary for not less than one nor more than ten years. The other facts sufficiently appear in the opinion.

J. F. Aldridge and Jesse V. Boyles, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

The indictment charged that the defendant, "an agent of Tennessee Valley Fertilizer Company, a corporation, under the laws of the state of Alabama, embezzled, or fraudulently converted to his own use, money to about the amount of one hundred and seventy-five and no/100 dollars, which had come into his possession by virtue of his office or employment." He was convicted by a jury, and under the judgment of the court following the verdict was sentenced to the penitentiary. The defendant appeals.

1. We desire to state, at the outset of this opinion, that the conclusions to which we have arrived in upholding the judgment of the court below are not based upon the theory that the contract dated "Florence, Ala 12/7/1908," which the reporter will set out in the summary of the facts of this case, and the letters subsequently written by the defendant, which were introduced in evidence, taken in connection with the further fact that the defendant bought fertilizers from the Tennessee Valley Fertilizer Company as contemplated, were sufficient to make out a prima facie case of agency against the defendant. "There is no magic in the word 'agency.' It is often used in commercial matters when the real relationship is that of vendor and purchaser." Sir W. M. James, L J., in White v. Neville, 6 L. R. Ch. Cases, 397. "Mr. Towle practically acknowledges in his cross-examination that the real bargain between them was this: That Neville was to pay Towle & Co. a fixed price at a fixed time, but he was not bound to sell to the customer at that price or at that time, but was left at liberty to make his own bargains. Both...