Hatchett v. Molton

76 Ala. 410 | Ala. | 1884

STONE, O. J.

— Terrell recovered a sum of money from Cunningham, which was received by Terrell’s counsel, and paid by him to Hatchett, the defendant in this suit. Hatchett was a creditor of Terrell, and he asserts the right to receive and hold the money, on the following alleged state of facts: That before the suit was brought against Cunningham, there was an agreement and contract by which Terrell transferred to Hatchett whatever sum might be recovered from Cunuingham, in payment of the debt Terrell owed to Hatchett. Under this alleged contract, counsel had paid the money to Hatchett.

The plaintiff denied the making of such contract between Terrell and Hatchett, and asserted claim to the money under a written transfer and order, executed by Terrell to him after the money was recovered, but before this suit was brought. There seems to have been no dispute that Terrell did excute the written transfer and order; that it was done in the State of Texas, and in the absence of plaintiff, and that Terrell mailed the transfer to plaintiff, who received it subsequently, and before this suit was brought. The testimony tends to show that this transfer and order was signed and mailed by Terrell, before the money was paid by counsel to Hatchett; but it is not shown it was received by plaintiff, until after such payment. This suit is brought by Molton, the alleged transferree, to recover the money so paid to Hatchett. Blaintiff had a verdict and judgment. No pleas appear in the record, but the judgment recites that the cause was tried on issue joined. Such recital raises the presumption, that general, but not special defense was interposed. — 1 Brick. Dig. 781, §§ 122, 123.

The contested fact, in one aspect of this case, was, transfer vel non from Terrell to Hatchett. If Terrell, for a valuable consideration, sold to Hatchett the product of the suit against Cunningham, and the contract of sale was consummated by an agreement upon all its terms, then the payment to Hatchett was rightful, and he received only what was his own. In such case, neither Terrell, nor any one claiming under him, could maintain an action against him for the recovery of the money. So, if there was no consummated contract of sale from Terrell to Hatchett, then counsel was not authorized to pay the money to Hatchett, and the funds would be, in the hands of the latter, so much money had and received for the use of Terrell, or his transferree. It is thus shown that, in either event, the time when the sale and order to Molton took place, was wholly immaterial, provided it was before the institution of the present suit. The charge excepted to could not possibly have injured the present appellant, on this phase of the case.

There was, possibly, another aspect of this case, which is not presented in the record.

There was no error in the charge given. A written contract, deposited in the mail, addressed to the promisee, and after-wards received by him, becomes a binding contract from the day of its deposit in the mail. — 2 Parsons Oontr. 6th Ed., 582.

Affirmed.