Williams v. Shows

• Decision Date: 04 June 1914
• Docket Number: 522
• Citation: 65 So. 839,187 Ala. 132
• Parties: WILLIAMS v. SHOWS.
• Court: Alabama Supreme Court

65 So. 839

187 Ala. 132

WILLIAMS v. SHOWS.

No. 522

Supreme Court of Alabama

June 4, 1914

Rehearing Denied June 24, 1914

Appeal from Circuit Court, Crenshaw County; A.E. Gamble, Judge.

Assumpsit by H. Williams against T.W. Shows. Judgment for defendant and plaintiff appeals. Reversed and remanded.

The first count was on an account due. Count A as amended was as follows:

Plaintiff claims of defendant the sum of $321.50, due from defendant to plaintiff for this, that on, to wit, January 19 1910, plaintiff went to defendant for the purpose of paying a debt owed to defendant by one Charles Fuller, a customer of defendant, and that, on stating the account, said Shows told plaintiff that, because of a pending suit between said Shows and Frank Hawkins, the landlord of Charles Fuller, by which said Hawkins was trying to collect the value of, to wit seven bales of cotton from said Shows, he (Shows) was holding said seven bales of cotton, which belonged to said Fuller but that he would not credit Fuller's account with the proceeds of said cotton until said suit was decided, and then only in the event said Shows was successful in said suit. Plaintiff avers that it was agreed between him and said Shows that plaintiff was to pay the said sum of $321.50 to said Shows, and in the event that said Shows was successful in the suit referred to, then in that event Shows would pay to plaintiff the value of said seven bales of cotton or turn the same over to plaintiff. Plaintiff avers that, acting upon this assurance of Shows, he paid said sum of $321.50 to Shows; said Fuller being present and consenting to the agreement between plaintiff and defendant, and assigning his interest in said seven bales of cotton to plaintiff. And plaintiff avers that said Shows was successful in the suit above referred to, and that plaintiff then made demand on defendant for the said seven bales of cotton or their value and that said Shows refused to deliver same. Plaintiff avers that the cause of action declared on in said count A is a part of and relates to the same transaction or subject-matter as set out or declared on in the original complaint.

W.H Stoddard and M.W. Rushton, both of Luverne, for appellant.

Frank B. Bricken, of Luverne, and Powell & Hamilton, of Greenville, for appellee.

DE GRAFFENRIED, J.

The law is well settled that, when one party to a contract has done all that the contract requires him to do, and nothing remains to be done, under the contract, but the payment of a sum of money by the other party to such contract, then such sum can be recovered by the party to whom such sum is due in an action upon the common counts. Woodrow v. Hawving, 105 Ala. 240, 16 So. 720.

1. The plaintiff, H. Williams, claims that T.W. Shows, the defendant, is the general manager of and largely interested in a mercantile company; that Charlie Fuller was indebted to said mercantile company in the sum of $321.50, which was secured by a mortgage on certain personal property; that said Charlie Fuller had turned over to said T.W. Shows seven bales of cotton which Shows was to sell and apply the proceeds as a credit upon said indebtedness; that after the cotton had been so delivered, and before...