McCord v. Bridges

• Decision Date: 19 April 1923
• Docket Number: 5 Div. 850.
• Parties: MCCORD v. BRIDGES.
• Court: Alabama Supreme Court

96 So. 432

209 Ala. 529

MCCORD v. BRIDGES.

5 Div. 850.

Supreme Court of Alabama

April 19, 1923

Rehearing Denied May 24, 1923.

Appeal from Circuit Court, Coosa County; W. L. Longshore, Judge.

Action in detinue by Z. D. McCord against J. U. Bridges. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Reversed and remanded.

Jno. A Darden, of Goodwater, and Jas. W. Strother, of Dadeville, for appellant.

L. H Ellis, of Columbiana, and Riddle & Riddle, of Talladega, for appellee.

THOMAS J.

The suit is in detinue for the recovery of a boiler, engine, and sawmill. Plaintiff gave bond under the statute and took the property; whereupon defendant, by replevy bond, repossessed and held the same at the time of trial.

The plaintiff advanced defendant $1,573 to buy the machinery, and the necessary money for its transportation and to set it up and took a mortgage therefor, which was duly recorded. The mortgage stipulated that it also covered future advances. The suit is based on that mortgage, brought after its law day. Defendant pleaded the general issue and payment.

After plaintiff had introduced in evidence the mortgage of date July 17, 1920, stipulating that it was due and payable on October 1, 1920, a witness in his behalf testified that the boiler was worth $175, the engine $350, and the sawmill, belting, pulleys, fixtures, tools, etc., about $350, on the day the suit was brought. There was no evidence tending to show what the sawmill alone was worth, or the separate value of the belting, pulleys, etc. There was evidence, however, that "the value of use and of all that except the sawmill from the 4th day of November, 1920, to the present time would be $1.50," and that "the value of the hire or use of the sawmill from the 1st day of October, 1920, to the 4th day of November, 1920, is 50 cents per day." This was a sufficient statement of its alternate value and that of its detention such as the nature of the property admitted. Gwin v. Emerald Co., Inc., 201 Ala. 384, 78 So. 758.

The defendant alone was examined in his own behalf, and testified that the mortgage on which the action was based had been paid in full prior to the time of the institution of the suit; that he had paid plaintiff something over $2,400; and had directed plaintiff to apply the payments that he (defendant) made to this debt-the mortgage which was the first one due and was the first one to be paid. The testimony of the defendant that he directed the application of payments to the mortgage was not contradicted. Redd Bros. v. Todd (Ala. Sup.) 95 So. 276. Was this a case where an application of payment might be directed by the debtor?

The evidence shows that the mortgage, the contract, and the deed to McCord from Herzfold to the timber lands on which the mill was located and to be operated with timber therefrom were a part of the same transaction. That is, the purchase of the land, or timber rights thereon, the erection of the sawmill, the manufacture of the timber into lumber, the application of the proceeds to the payment of the indebtedness to McCord, and the provision for necessary operating expenses to Bridges, were the objects and subjects of the foregoing documentary evidence. They will be construed together, as was the intention of the parties. The mortgage, stipulating the sum of $1,573 as its consideration, expressly recites that-

"If said payee (Z. D. McCord) shall advance anything to me (J. U. Bridges) over and above the amount named in this obligation, this conveyance shall stand as security for the same as fully as if included in said amount."

The contract as to said lands, mill, timber, and lumber recites the intention of the parties was the purchase of the timber lands and erection thereon of the mill plant; specifically states that McCord had advanced money to pay for the same; that, by agreement, the deed was taken in the name of McCord; and stipulates that-

"Should millman (J. U. Bridges) carry out all the terms of this contract, paying for all money advanced then the said Z. D. McCord is to make deed back to millman to said lands."

It contains the further provision for the division of the proceeds of the sale of the lumber manufactured, to the end that one-half be applied to the liquidation of the millman's indebtedness to the purchaser (McCord), and one-half be paid to Bridges to provide him with funds to operate the mill, etc., and concludes with the covenant by the millman (Bridges):

"*** That he will make and deliver to purchaser a good and valid mortgage on all sawmill, engine, boiler, feeder, and all other equipment and fixtures of the mill so located, and same to be free from incumbrances. This is to be done as soon as mill is placed on the premises described above. Same to be given as additional and further security of indebtedness to purchaser. *** That should millman fail to carry out any part of his contract that the entire contract may be declared forfeited by purchaser, at his option, and proceed to take charge of or dispose of the property mortgaged, the mill included, and take over the same and operate the mill himself, or contract

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