Warren v. Barnett

• Decision Date: 26 January 1888
• Citation: 3 So. 609,83 Ala. 208
• Parties: WARREN ET AL. v. BARNETT.
• Court: Alabama Supreme Court

3 So. 609

83 Ala. 208

WARREN ET AL. v. BARNETT.

Supreme Court of Alabama

January 26, 1888

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Action for money had and received. This action was brought by Thomas M. Barnett against J. R. Warren & Co., a mercantile firm doing business in the city of Montgomery. The complaint contained only the common counts, and the only plea was the general issue. The evidence, as shown by the bill of exceptions, tended to show that Belser & Parker by contract became tenants, for the year 1886, to Barnett, appellant, of a plantation in Bullock county, at an agreed rent of $1,200 to be paid in November, 1886. Belser & Parker did not personally cultivate the lands, but sublet them to under tenants, taking their obligations to pay the rent in cotton aggregating 35 bales to be paid. These obligations to deliver or pay in cotton, Belser & Parker deposited with J. R. Warren & Co., as collateral security for a debt contracted or to be incurred. Warren & Co. knew on what lands the cotton specified in the contract was to be grown, knew that Belser & Parker had rented the lands from Barnett, the rent to be afterwards paid, and, up to and including the time when they received the $500, they were informed that the rend due to Barnett had not been paid. When the crop matured and was harvested, Belser & Parker collected the rent cotton and placed it with Lehman, Durr & Co. Lehman, Durr & Co. had notice that J. R. Warren & Co. held the rent contracts of the subtenants, on account of which the rent cotton had been delivered, and that they claimed the proceeds, or a lien on the proceeds of the cotton. The fact being thus, Belser & Parker, at the request of J. R. Warren, drew on Lehman, Durr & Co. in their favor, and the said draft was honored. The other facts of evidence are sufficiently set out in the opinion. At the written request of the plaintiff the court gave the following charge to the jury: "That if the jury believe all the evidence they must find for the plaintiff." The defendant excepted to the giving of this charge, and asked the court, in writing, to charge the jury: "(1) The defendant's plea puts in issue plaintiff's right to recover; and to show that right in this case he must show that the lands upon which the cotton was grown were the statutory separate estate of the wife. Under the pleadings, the legal presumption of evidence that they are such statutory separate estate, is not sufficient; and if there is no testimony in the case showing that such is the character of the estate, the jury must find for the defendant." The court refused to give this charge, and the defendants excepted.

Roquemore, White & Long, for appellants.

Marks & Massie, for appellee.

STONE C.J.

The legal principles governing this case were considered and determined when it was before us at the last term. Barnett v. Warren, 82 Ala. 557, 2 South. Rep. 457. When the case returned to the circuit court some change was made in the testimony, but that change did not benefit the defendant. It made clear that which, on the former trial, furnished only probable cause for inference by the...