Stewart v. White

• Decision Date: 07 November 1914
• Docket Number: 711
• Citation: 66 So. 623,189 Ala. 192
• Parties: STEWART et al. v. WHITE.
• Court: Alabama Supreme Court

66 So. 623

189 Ala. 192

STEWART et al. v. WHITE.

No. 711

Supreme Court of Alabama

November 7, 1914

Appeal from Chancery Court, Morgan County; W.H. Simpson, Chancellor.

Bill by J.R. White against S.E. Stewart, Stewart Bros., and the members composing the firm, for a receiver to take charge of the property of the Stewarts, and be required to sequester and sell so much of said property as may be necessary to finance orator's enterprise according to the agreement and to enjoin and restrain defendants, and each of them, from refusing to accept all invoices for the output of complainant, and from refusing to advance the face value thereof in cash to complainant, and from attempting to foreclose said mortgage in any way, and for other and further relief. From a decree granting temporary injunction respondents appeal. Reversed and remanded.

McClellan J., dissenting.

Tidwell & Sample, of New Decatur, and O. Kyle, of Decatur, for appellants.

E.W Godbey, of Decatur, for appellee.

DE GRAFFENRIED, J.

We deem it necessary to discuss only one question presented by this record. That question grows out of the following facts:

S.E Stewart sold to J.R. White certain land in the town of Hartselle, Ala., upon which was situated a stave mill. White made to Stewart a mortgage for $5,700 on the property, $4,750 of which was for the purchase price of the property, and $950 was for cash furnished by Stewart to White to purchase new machinery for the mill. When this mortgage was made Stewart and White agreed that Stewart, and "also the firm of Stewart Bros., *** shall accept all invoices for the entire output of said stave mill plant, and advance the said J.R. White the face value of said invoices in cash, less 2 per cent.; the said White guaranteeing the correctness and payment of said invoices, and further agreeing to collect and immediately turn over to the said S.E. Stewart or Stewart Bros., as the case may be, all checks, notes, and cash received by him for and on said invoices so purchased by the said S.E. Stewart; that this agreement, as to said invoices, shall remain in full force and effect until the payment and satisfaction" of said $5,700 mortgage. The said $5,700 mortgage debt was to be paid by White in 57 equal monthly installments. The first installment was to be paid on January 1, 1913, and the last installment 57 months thereafter.

1. Proceeding upon the theory that S.E. Stewart had the authority to make the above agreement on behalf of Stewart Bros., of which he was a member, the question is: Do the facts present a case in which a court of equity will specifically enforce the said agreement, either as against S.E. Stewart or Stewart Bros., by decreeing that they "accept all invoices for the entire output of said stave mill plant, and advance the said J.R. White the face value of said invoices in cash, less 2 per cent.; the said J.R. White guaranteeing the correctness and payment of said invoices"? This quoted portion of the agreement was to cover the entire period of 57 months--i.e., until the mortgage debt was paid; and the question is: Will a court of equity specifically enforce the agreement? In other words will a court of equity, by the remedy which has been provided...