Wooten v. Steele

• Decision Date: 22 June 1893
• Citation: 98 Ala. 252,13 So. 563
• Parties: WOOTEN v. STEELE ET AL.
• Court: Alabama Supreme Court

13 So. 563

98 Ala. 252

WOOTEN v. STEELE ET AL.

Supreme Court of Alabama

June 22, 1893

Appeal from circuit court, Marengo county; James B. Head, Judge.

Action of assumpsit by James A. Steele and others against Council B Wooten for money had and received. From a judgment for plaintiffs, defendant appeals. Affirmed.

John C Anderson, for appellant.

Geo. W Taylor, for appellees.

COLEMAN J.

The action is in assumpsit, upon the common count, for money had and received. The defendant pleaded the general issue, and statute of limitation of three years. At the close of the evidence, the court, upon their request, gave the general charge for the plaintiffs. There is no conflict in the evidence. In January, 1877, Thomas S. Fry conveyed to Robert L. Steele certain tracts of land, in trust, with general power of sale, the proceeds to be applied by him to the payment of debts due and owing to certain named creditors. Included in the debts to be paid was one due the grantee and trustee, Robert L. Steele, for $3,489.74, and one due the defendant, Wooten, for $2,500. One of the tracts of land designated as the "Odom Place," was sold by Robert Steele to the defendant, C. B. Wooten, in consideration of which Wooten executed to him his written obligation "to pay said Steele one-half of the amount the above-mentioned lands may sell for. It is agreed that I am not to be responsible to the said Steele for any amount except it accrues from the sale or other disposition that may be made of the Odom lands. Said land contains about 2,520 acres, and is situated in Wilcox Co., Ala. This the 23rd day of May, 1882. [Signed] C. B. Wooten." Robert L. Steele died in the year 1883. His estate was duly administered upon, and the administration finally settled in the year 1886. It was then proven that Wooten sold the Odom place in January, 1888, for $3,000. It was further proven that there were no debts against the estate of Robert L. Steele. This suit was instituted by the heirs of Robert L. Steele, after demand, in February, 1891, to recover the one-half of the purchase money for which Wooten had sold the land. The written obligation of Wooten was to pay to Steele "one-half for which the above lands may sell for." The lands were sold in 1888 for $3,000. The statute of limitation of three years has no application where the assumption is evidenced by an express obligation to pay a fixed amount.

It is contended that plaintiffs...