Potts v. First Nat. Bank

• Decision Date: 07 February 1894
• Citation: 102 Ala. 286,14 So. 663
• Parties: POTTS ET AL. v. FIRST NAT. BANK OF GADSDEN.
• Court: Alabama Supreme Court

14 So. 663

102 Ala. 286

POTTS ET AL. v. FIRST NAT. BANK OF GADSDEN.

Supreme Court of Alabama

February 7, 1894

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by the First National Bank of Gadsden against Potts & Potts on the common counts for money had and received. Judgment for plaintiff, and defendants appeal. Affirmed.

W. H Denson and J. L. Tanner, for appellants.

Dortch & Martin, for appellee.

HEAD J.

The parties have argued this case upon briefs, and it is not insisted by appellants that the finding of the lower court on the disputed facts is wrong. We have examined the evidence and are not prepared to say, ourselves, that there is error in that regard. The contention of appellants is that, upon the case made by the appellee's evidence, a recovery cannot be had upon the common counts. The facts so shown are that Young & Herring, a partnership, being indebted to the plaintiff in the sum of $231, and to other parties, and being indebted also to appellants in a large sum, Young, with the consent of Herring, sold the stock of goods, etc., of the firm to the appellants, in consideration of which appellants paid him $1,000 in cash, and assumed and bound themselves to pay and discharge the outstanding debts of the partnership including the discharge of their own claim, all aggregating $4,345.36, and the goods were delivered to appellants. It seems that the purchase was made for Herring, or with the view of their immediate resale to him; and on the same day he, Herring, executed to appellants a mortgage on the goods to secure sundry notes cotemporaneously executed, aggregating $4,345.36, maturing at sundry times in the future. It was stipulated in the mortgage that Herring should remain in possession of the goods, and sell them out as agent of appellants, and account and pay over to them every month all proceeds of sales, which it seems was done. There was also a general power of sale in appellants, after default in the payment of any of the secured notes; any surplus of the proceeds after paying the secured notes and expenses to be paid to Herring. The appellee's evidence also shows that at the time of the transaction, its claims were produced by one of its officers or agents, and that Potts, acting for appellants, said they were all right. Appellants having refused to pay, this action was brought, the appellee relying upon the count for money had and received. We realize the force of the...