Wilcox v. San Jose Fruit-Packing Co.

• Citation: 21 So. 376,113 Ala. 519
• Parties: WILCOX v. SAN JOSE FRUIT-PACKING CO.
• Decision Date: 12 January 1897
• Court: Supreme Court of Alabama

21 So. 376

113 Ala. 519

WILCOX v. SAN JOSE FRUIT-PACKING CO.

Supreme Court of Alabama

January 12, 1897

Appeal from circuit court, Montgomery county; John Tyson, Judge.

Action of detinue by the San José Fruit-Packing Company against M P. Wilcox. Judgment for plaintiff, and defendant appeals. Reversed.

Graham & Steiner, for appellant.

A. D Sayre and Sayre & Pearson, for appellee.

COLEMAN J.

Birch &amp Crawford purchased from the fruit company (appellee) a car load of fruit, shipped California to the purchaser, in Montgomery. Birch & Crawford failed in business, and assigned. The vendor (the plaintiff) instituted the present action of detinue for the car load of fruit against appellant, Wilcox, the assignee. The case was submitted to the court for decision without a jury upon the following agreed stated of facts: "That Birch & Crawford were, at the time of the purchase of the goods sued for, insolvent, or in failing circumstances. That at that time Birch & Crawford had no reasonable expectation of being able to pay for the goods. That Birch & Crawford failed to disclose their financial condition to plaintiff. No demand was made on them for a statement, and none was made. That before the bringing of this suit Birch & Crawford bought on credit from the plaintiff the goods sued for, and they have never been paid for. That Birch & Crawford made a general assignment to defendant, M. P. Wilcox, for the benefit of their creditors on October 17, 1895. Said assignment is made a part of this agreement. That on October 16, 1895, Birch & Crawford paid the freight on the goods in controversy, but they were left in possession of the railroad company. That on the 18th day of October, 1895, the assignee, Wilcox, the defendant, took the goods from the railroad, and put them in the place of business which had been occupied by Birch & Crawford, but then in his charge, and they were in his possession when this suit was brought. About a week after the assignment, plaintiff's attorney made demand on said Wilcox for the goods. That a bill of lading was attached to the draft drawn by plaintiff on Birch & Crawford for the purchase price of the goods in suit, with instructions to the bank to which it was sent for acceptance and collection to deliver the bill of lading when the draft was accepted by Birch & Crawford. That the draft was accepted, and the bill of lading delivered to Birch & Crawford on October 16, 1895. The draft was dated October 2, 1895, and was payable sixty days after date. That the First National Bank of Montgomery, to which the draft was sent, had instructions to retain the draft, and collect on maturity. That the said bank kept the draft, and on or about its maturity, without any further instruction from the plaintiff, presented it to Birch & Crawford for payment, which was refused. That at the time of the bringing of this suit, plaintiff deposited in the said bank $2,500, to indemnify said bank against loss it might suffer by reason of making bond for plaintiff to bring this suit, which said bank did. The plaintiff never tendered back to Birch & Crawford the freight money nor the acceptance. Upon the foregoing, which are the facts, it is agreed that the court shall decide the case, a jury being waived. The value of the property is $1,441.75. Property in possession of plaintiff."

The day after the cause had been submitted, but before a decision had been rendered, the plaintiff obtained leave of the court to withhold its decision until they could send to California, and get the acceptance spoken of in the agreed statement of facts, and to tender it to defendants, and to make proof of these facts, and to file the acceptance in court with the papers. The court granted the motion, held up its decision until the draft had been received, and tendered and filed, against the objection of the defendant, and that, too, as appears from the abstract, without setting aside the submission, and placing the parties in statu quo. The draft, with the acceptance, is as follows:

$1,145.75. Office of San Jose Fruit Packing Company.

San Jose, Cal., Oct. 2nd, 1895.

Sixty days after date pay to the order of ourselves, Eleven Hundred Forty-five 75-100 Dollars, United States Gold Coin, with Exchange on New York or San Francisco, value received, and charge the same to account of

No. 341. San Jose Fruit Packing Co.

Per p a 12o.

H. H. Peate,

Treasurer.

The court gave judgment for the plaintiff, and defendant appealed.

Two questions are presented: Did the court have authority to receive the additional evidence? And, if not, did the agreed statement of facts authorize the judgment of the court? We are of opinion that both of these questions must be answered adversely to appellee. The conclusive presumption is that the defendant would not have consented to the submission of the cause for decision by the court upon any other than the agreed statement of facts. If the court had decided the case upon the agreed facts in favor of defendant, and the plaintiff's right to a new trial had depended upon the right to obtain and introduce the accepted draft on another trial, no proof of diligence was shown, nor evidence offered to show, why the acceptance was not introduced on the first trial. When partie...