Packard v. City of Mobile

• Decision Date: 09 May 1907
• Citation: 43 So. 963,151 Ala. 159
• Parties: PACKARD v. CITY OF MOBILE.
• Court: Alabama Supreme Court

43 So. 963

151 Ala. 159

PACKARD v. CITY OF MOBILE.

Supreme Court of Alabama

May 9, 1907

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill by Joseph Packard against the city of Mobile. Decree for defendant, and plaintiff excepts. Affirmed.

This is a bill by Packard against the city of Mobile and Inge, as trustee for the holders of wharf bonds, alleging that he was a holder of a certain bond which matured on January 1, 1906 and which remains unpaid by the said city. The prayer seeks to fasten a vendor's lien on the wharf property of the city of Mobile, and to have the same condemned and sold to satisfy the lien. The bond is made an exhibit to the bill. By the answer defendant admits all the allegations of the bill except that plaintiff is the owner of the bond and that the bond matured on January 1, 1906, both of which are denied. By way of further answer the defendant set up section 9 of the act of the General Assembly approved December 8, 1880 (Laws 1880-81, p. 337), and that under said section, on the 14th day of January, 1901, the First National Bank of Mobile drew the bond sued upon, with other bonds, and caused the same to become due and payable on the 1st day of February, 1901. The bonds so drawn were promptly advertised in a newspaper published in New York and in Mobile, calling for a presentation for payment, with one month's interest, of the bonds so held by complainant, and thereafter the bond was not presented for payment, but from time to time coupons were severed from said bond and presented for payment to the First National Bank, and were paid, and that such payments were reported to this court and allowed out of the trust funds provided by said act of the Legislature, and no notice of assignment of said bond has ever been given since the same became due and payable according to the terms of the act. It is alleged that the amount of interest improperly paid was $125, and upon presentation for payment of the bond on the 1st day of January, 1906, respondents offered to pay the complainant the face of the bonds, with one month's interest, less the $125 already paid on the same, and tendered to the holder of the bond $377.08, which the plaintiff refused to accept. It is also alleged that this amount was put into court. This was also set up by way of plea. These exceptions need not be stated. The other facts sufficiently appear in the opinion.

Francis J. Inge, for appellant.

Gregory L. & H. T. Smith, for appellee.

McCLELLAN J.

The overruling of complainant's exceptions to the answer and plea of the respondents are the errors assigned. The assignments rested upon the court's action on exceptions to the answer cannot be considered. Cleveland v Insurance Co. (Ala.) 44 So. 37.

The bond, the collection of which is sought by the bill, is of an issue authorized, as announced on its face, by act of the General Assembly approved December 8, 1880. Acts 1880-81, p 329. The amendment thereof at that session does not appear to have altered section 9 of the act, the section important for this occasion. This section is set forth in paragraph 2 of the answer, and is also adopted as a part of the plea in bar to a recovery above the sum stated in the incorporated plea. After providing the method for drawing the bonds to be satisfied out of the surplus accumulated as stated, section 9 declares: "* * * And said drawn bonds, with one month's interest thereon, at the then current rate of interest on such bonds, shall become due and payable on the first day of February next following after such drawing, and said bonds with said interest for one month shall be paid in full by said bank of depository upon their presentation, with all their future coupons attached, and upon delivery of the same at the place designated in such advertisement. After said first day of February said drawn bonds shall cease to bear interest, and the coupons thereon shall become void." The bond in question was so drawn in January, 1901, but was not, with the "future coupons attached," presented for payment. The "future coupons" were detached, and periodically presented and paid. It is the aggregate sum of such payments that the city and trustee, by their answer and plea, seek to have deducted from the amount recoverable on...