49 So. 871 | Ala. | 1909
Feore was a creditor, it appears, of the Mississippi Transportation Company. That company was the charterer of the steamship Beta, of which vessel A. Berg was the master. The vessel was owned by Henson & Oloster, of Germany. Under the terms of the charter party the charterer was entitled, after allowing all proper credits, to about $1,000. Feore caused writ of garnishment to be served on Berg, as master of the ship, in an effort to enforce payment of his demand against the Mississippi Transportation Company. Berg answered, in a form agreeable to the plaintiff, that he was without contractual relation, present or prospective, with the defendant in the writ of garnishment; that Henson & Closter, the -owners of the vessel, had arranged with the Leinkauf Banking Company, of Mobile, a credit, in his favor as master, of not exceeding $5,000. The nature and effect of this credit was the subject of thorough investigation on the hearing. From the- answer, on deposition, in that connection, we conclude that the arrangement made was that the master’s drafts or checks would be honored by the Leinkauf Banking Company within the limit stated. It is settled with us, and not controverted by this appellant, that garnishment is serviceable in this state to subject a
The theory upon which the appellant relies is that the debtors (Henson & Closter)'-of the transportation company had placed under the control or in the hands of the master of the Beta funds with which to satisfy the demand of the defendant against them. The facts, as we have indicated, were, though reviewed with the utmost favor to the appellant, that, instead of having funds of Henson & Closter in his hands or under his control, the master had only a power of demand for funds upon the Leinkauf Banking Company. In other words, the master’s status was that of one vested with the power to demand and receive funds from a third person (the banking company) ; such funds being (let us assume) on deposit as those of the master’s principal. Obviously, until the demand was made and complied with, the master had no funds of his principal in his possession or under his control. Such being the case, the principle declared in Coleman & Carroll v. Hatcher, 77 Ala. 217, 220, 221, applied to deny any right of action to the transportation company to recover from the master, for the reason that the authority and power conferred on the master by Henson & Closter was revocable by them at their option. If, of course, the master had drawn funds of his principals, in order to pay the debt to the transportation company, under the direction of Henson & Closter, then the right of the transportation company to recover in assumpsit would have been available to it. Blit the funds had not been drawn when this writ was
Counsel for appellant cite in support of their contention the cases of Eufaula, Grocery Co. v. Missouri Bank, 118 Ala. 408, 24 South. 389, and Cunningham v. Baker, 104 Ala. 106, 16 South. 68, 53 Am. St. Rep. 27. Both of these decisions involved garnishment, where the garnishee had possession in his or its hands of funds of the defendant in the writ, and hence are not authoritative on the real question at bar.
The views entertained, as stated, render it unnecessary to decide whether the plaintiff in garnishment may elect for the defendant in the writ, whether the agent or the principal will be proceeded against as- upon the demand due the defendant. — See Eufaula Grocery Co. v. Missouri Bank, supra.
The judgment, it follows, must be affirmed.
Affirmed.