67 So. 721 | Ala. Ct. App. | 1914
The Stafolife Feed & Milling Company, who are located and engaged in business at New Orleans, La., shipped to Belser Grocery Company at Montgomery, Ala., a car load of feed, drawing a draft
If the matter rested here, the plaintiff’s right to recover is clearly settled by the decisions of the Supreme Court, which hold that “when the consignor draws upon the consignee for the purchase money, and the draft, the
It was not so divested in this case, as seen; and, consequently, the levy upon and seizure of the property was unquestionably a trespass as against the appellee, in whom, as the transferee of the bill of lading, reposed the title. — Authorities supra. It appears, however, that after the commission by the defendants here of the mentioned tort, but before the appellee brought this action for its redress, the Stafolife Feed & Milling Company, the drawers of the draft, did, in recognition of their liability as such drawers, reimburse the appellee upon demand the amount it paid them for the draft, with an understanding that the appellee was to bring this suit at their expense and pay to them whatever sum was recovered and collected. These last-named facts form the basis of the defendants’ (appellants’) insistence here, which is as follows:
(1) That as a result of the repayment by the drawer to the appellee of the amount the latter paid for the draft, the latter’s title to and interest in the bill of lading and the property which it represented, and all rights of action with respect to it, held as security for such repayment, ceased and terminated eo instante upon such repayment, and that consequently such repayment de
(2) That, even if this contention be not true, and even if it be true that the appellee has the right to prosecute this action, it does so, under the facts as stated, merely as a nominal plaintiff — the real plaintiff being the Stafolife Feed & Milling Company, for whose ben-, efit the suit was in fact brought — and that, consequently, the defendants have a right to set off against the action all claims and demands that they could under the law have set off against the Stafolife Feed & Milling-Company in the event the suit had been brought in the latter’s name.
Answering these contentions in the order as stated, it may be said with respect to the first that the rules of the common law designed to prevent champerty and maintenance, and which have not been modified here in the particular now under consideration, forbid that this action, which, as seen, is for a trespass in taking personal property, should be brought in any other name than that of appellee, its owner at the time of the commission of the trespass. The appellee could not, by either a sale, a transfer, or a surrender of the bill of lading, or of the property represented by it, or of the draft, confer upon another its right of action for the mentioned tort, but at most could confer only a right to prosecute such action in its own name.-Dunklin v. Wilkins, 5 Ala. 199; Pearson v. King, 99 Ala. 125, 10 South. 919; Hinton v. Nelms, 13. Ala. 222; Foy v. Cochran, 88 Ala. 353, 6 South. 685; Long v. Kansas City, M. & B. R. R. Co., 170 Ala. 638, 54 South. 62. Hence, however the case be, the suit was properly brought in the name of appellee.
As to whether or not a set-off, if one existed in favor of the defendants against the Stafolife Feed & Milling
It is true that from the agreed statement of the facts it appears that there ivas in evidence the whole of the record and proceedings in the attachment case herein-before mentioned, which record showed, among other things, a judgment rendered in that suit against said milling company for $750 in favor of the Belser Grocery Company, one of the defendants here, and showed the return of the sheriff disclosing that the proceeds of the said property so seized and sold under the attachment paid only $85.75 on that judgment, thereby leaving a large balance unpaid; yet the record further showed that this judgment was predicated upon said attachment against a nonresident, who was not served with process and was brought in only by publication. The judgment was, therefore, one in rem, and not one in per-sonam, and had no efficacy beyond its power to bind and subject the property seized under the attachment, and beyond this it furnished no evidence that said milling company was indebted to said Belser Grocery Company.—Exchange Nat. Bank v. Clement, 109 Ala. 270, 19 South. 814; Reynolds v. Williams, 152 Ala. 488, 44 South. 406; Palace Car Co. v. Harrison, 122 Ala. 149, 25 South. 297, 82 Am. St. Rep. 68.
We are consequently of opinion that the court did not err in giving the general affirmative charge for appel-
It follows that the judgment appealed from is affirmed.
Affirmed.