Meyrovitz v. Levy

• Decision Date: 13 November 1913
• Citation: 63 So. 963,184 Ala. 293
• Parties: MEYROVITZ et al. v. LEVY.
• Court: Alabama Supreme Court

63 So. 963

184 Ala. 293

MEYROVITZ et al. v. LEVY.

Supreme Court of Alabama

November 13, 1913

Rehearing Denied Dec. 18, 1913

Appeal from Circuit Court, Houston County; B.F. Reid, Special Judge.

Action by D. Levy against E. Meyrovitz and another. From a judgment for plaintiff, defendant named appeals. Affirmed.

A.E Pace and Espy & Farmer, all of Dothan, and W.L. Lee, of Columbia, for appellant.

R.P Coleman, of Dothan, for appellee.

MAYFIELD J.

Appellee sued E. & J. Meyrovitz on four promissory notes aggregating $1,200. E. Meyrovitz alone defended, on the theory that she executed the notes as surety for her husband, J. Meyrovitz. The trial resulted in verdict and judgment for the plaintiff and the wife alone appeals.

The only question litigated was whether or not the wife owed the debt for which the notes were given. This question was properly raised, was fairly tried and submitted to the jury, and was decided against appellant.

There is no doubt that the notes were given for borrowed money; they so recite, and all the evidence so shows. Was the loan to the wife or to the husband? This is really the only disputed issue.

The loan was obtained for the purpose of purchasing a stock of goods at a bankrupt sale. The money was paid by check to one Chas. I. Levy, who, according to his and the plaintiff's version, received and receipted for it as the agent of the appellant, Mrs. E. Meyrovitz, who is a sister-in-law of the plaintiff. Plaintiff offered in evidence a check and receipt as evidencing the transaction, which were as follows:

"Pensacola, Fla., Jan'y 28, 1902. City National Bank, of Selma, Ala. Pay to the order of Chas. I. Levy $1500.00 fifteen hundred 00/100 dollars. D. Levy."

"Pensacola, Fla., Jan'y 28, 1902. Received of D. Levy of Selma, Ala., fifteen hundred 00/100 dollars. On a/c of E. Meyrovitz on purchase price of Meyrovitz Bros.' stock of goods at Pensacola, Fla. Chas. I. Levy."

Mrs. E. Meyrovitz denied authorizing Chas. I. Levy to obtain the loan or to receipt for the same.

Chas. I. Levy's version of the transaction is as follows: "My name is Charles I. Levy; I reside in Montgomery, Ala. I know the parties to this suit; I had a business transaction with the plaintiff and J. Meyrovitz, one of the defendants in this cause, in January, 1902. The terms of said transaction were expressed in writing, and the same are attached to my depositions marked 'Exhibit A.' " Exhibit A to this witness' deposition is as follows:

"Exhibit 'A.'

"Pensacola, Fla., Jan. 28, 1902. This agreement made and entered into by and between Chas. I. Levy of Montgomery, Ala., and E. Meyrovitz of Dothan, Ala. Witnesseth: That whereas the said Chas. I. Levy has this day bought the stock of goods, furniture and fixtures in the storehouse No. 200 Palafox St., Pensacola, Fla., being the property of the estate of Meyrovitz Bros., bankrupt, at and for the sum of $3,758.04, it is hereby agreed by the said Chas. I. Levy in consideration of the payment to him by E. Meyrovitz of the sum of fifteen hundred ($1500.00) dollars, that so soon as he shall realize from the proceeds of the sale of said goods, after deducting all expenses incurred in running said business, including cost of goods bought in replenishing said stock, rents, clerk hire, insurance, and any and all other expenses incident to the conduct of said business, the sum of $2,258.04, with interest thereon, that he will execute to the said E. Meyrovitz a bill of sale to the said stock of goods, furniture and fixtures on hand at the time. It being fully agreed and understood that the said Chas. I. Levy is to have the full management and control of said business until he is paid out of the proceeds of said business the sum of $2,258.04 above named and all expenses contracted in operating and managing said business. And the said E. Meyrovitz accepts this agreement on the terms stated herein. Chas. I. Levy. E. Meyrovitz, by D. Levy."

Continuing his version of the transaction in question, said witness Chas. I. Levy deposes as follows: "I bought the stock of goods of Meyrovitz Bros. for E. Meyrovitz under an agreement to transfer same to E. Meyrovitz. After realizing my money out of said stock of goods I delivered possession of the same either to J. Meyrovitz or to some one acting for E. Meyrovitz. I did not have any transaction with E. Meyrovitz personally."

J. Meyrovitz, the husband, testified that the loan was made to him, and not to his wife, and that his wife never authorized him to obtain it for her, nor to buy the stock of goods for her; and his wife testified to the same, or substantially the same, facts.

It is undisputed, however, that the goods purchased were put into the business which was being conducted in the name of the wife, and were accepted by her and sold by her; and that after all of this she and her husband executed the notes sued on, and that the proceeds of...