Mazer v. City Nat. Bank of Tuscaloosa, 6 Div. 386.

• Decision Date: 21 March 1933
• Docket Number: 6 Div. 386.
• Citation: 146 So. 885,25 Ala.App. 372
• Parties: MAZER et al. v. CITY NAT. BANK OF TUSCALOOSA.
• Court: Alabama Court of Appeals

146 So. 885

25 Ala.App. 372

MAZER et al. v. CITY NAT. BANK OF TUSCALOOSA.

6 Div. 386.

Court of Appeals of Alabama

March 21, 1933

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action on account by Dave Mazer and Simon Leader against the City National Bank of Tuscaloosa, as executor of the will of M. L Waddell, deceased. From a judgment for defendant, plaintiffs appeal.

Affirmed.

H. L Findley, of Tuscaloosa, for appellants.

C. H Penick and J. W. Mustin, Jr., both of Tuscaloosa, for appellee.

SAMFORD, Judge.

The Leland-McGee Hardware Company was in financial difficulties and by instrument in writing, including general power of attorney, conveyed and turned over the assets of the company, for the benefit of its creditors, to A. C. Cade, Gordon D. Palmer, and J. F. Watson. Included in this assignment were the book accounts of the hardware company. The assets of the Leland-McGee Hardware Company were by the assignees acting under the written assignment, and the officers of the hardware company, sold and conveyed to these plaintiffs. This sale included the book accounts, and among these book accounts appeared one against M. L. Waddell, aggregating the amount sued for in this action.

At the time of the sale above noted, M. L. Waddell was dead, and the City National Bank of Tuscaloosa was duly qualified as executor of the last will of Waddell.

Prior to his death, Waddell had become indorser on a note signed by Leland-McGee Hardware Company, in the sum of $2,000, and payable to the City National Bank, of which bank Gordon D. Palmer was vice president and trust officer in charge of estates for which it acted as executor or administrator. One of these estates was that of Waddell.

The account appearing on the books of the hardware company against Waddell was duly filed with the City National Bank as executor. The note for $2,000 was also filed. On August 1, 1931, the executor of Waddell's estate paid the $2,000 due on the note, and the note was by the bank transferred to the Waddell estate, and to that extent the Waddell estate became a creditor of the Leland-McGee Hardware Company and participated in the assignment of the hardware company.

On August 1, 1931, the $2,000 note was credited with the amount appearing on the books of the hardware company against Waddell, and Palmer, acting for the bank, as executor, notified McGee, who was keeping the accounts of the hardware company, "of the credit so that he could make the proper entry." No entry of the transaction was made by McGee, and, at the time of the purchase of the book accounts by these plaintiffs, the account of Waddell appeared to be open and unpaid.

There was evidence tending to prove, though this was denied, that plaintiffs had notice before the trade for the assets of the hardware company was closed and before the purchase price had been paid, the exact status of the account of Waddell and the fact that Waddell held a claim for the $2,000 note.

There are two major questions involved in this appeal: (1) Is the defendant, as executor of the estate of Waddell, deceased estopped from setting off a part of the $2,000 note against the account appearing on the books of the hardware company against Waddell, by reason of the fact...