Leinkauff & Strauss v. Forcheimer & Co., 87 Ala. 258

Leinkauff & Strauss v. Forcheimer & Co.

87 Ala. 258 | Ala. | 1888

STONE, C. J.

When Harris and Lehman, Durr & Co. concluded their contract of sale and purchase of the sixty-four bales of cotton, the result was that, prima facie, Lehman, Durr & Co. became debtors to Leinkauff & Strauss in the sum they had promised to pay them, $728. This was part of the purchase-price of the cotton; and the promise, made as part of the contract of purchase, being to pay to Leinkauff & Strauss, the law, in the absence of all other facts, presumes their acquiescence in, and acceptance of it, because it appears to be for their benefit. It clothed them with such right to the money, as that they could have maintained indebitatus assumpsit for its recovery. Any attempt, made at that time, to subject this indebtedness of Lehman, Durr & Co. to the payment of other debts of Harris, would have failed. — Coleman v. Hatcher, 77 Ala. 217.

The presumption, however, that Leinkauff & Strauss would *262and did accept this provision for their benefit, and would agree to accept Lehman, Durr & Co. as their debtors, was not conclusive. It was made without their concurrence, and was open to their ratification or rejection. If, on being informed of it, they repudiated the arrangement, and sought other remedies inconsistent with it, this would be equivalent to a rejection of the benefit, and, at least so long as they prosecuted the inconsistent claim, would annul or suspend the promise to pay them, made by Lehman, Durr & Co. They could not, at one and the same time, attach the sale of cotton made to Lehman, Durr & Co. as fraudulent, and claim the provision that sale had procured for their benefit. 3 Brickell’s Digest, 341, §§ 160, 161; Butler v. O'Brien, 5 Ala. 316.

We are within safe bounds when we hold, that when Leinkauff & Strauss rejected the offer made in the contract, for . Lehman, Durr & Co. to pay them the specified sum of money, and attacked for fraud the trade of which that promise was a part, that money became due and payable to Harris, if to any one. If Lehman, Durr & Co. did not lose the cotton, which was the consideration of the promise, they owed the money; and Leinkauff & Strauss ref using to receive it, they owed it to Harris, from whom the consideration had moved. It then, like any other money debt due to Harris, became subject to garnishment at the suit of his judgment creditors.

Pending the suit of Lienkauff & Strauss, to subject to their claim the cotton which Harris had sold to Lehman, Durr & Co., for alleged fraud in the sale, Forcheimer & Go., having obtained a judgment against Harris, had a writ of garnishment served on Lehman, Durr & Go., as supposed debtors of Harris. Lehman, Durr & Co. answered the garnishment, setting forth the facts, and deposited the money in court. Leinkauff & Strauss, having failed to subject the cotton to their demand, then set up a claim to the money paid into the court by Lehman, Durr & Co. Ihe conflicting claims of Forcheimer & Co., as attaching creditors, on the one side, and Leinkauff & Strauss on the other, constituted the issue in this cause. The Circuit Court adjudged the money to Forcheimer & Co.

Like Leinkauff & Strauss, Forcheimer & Co. had been provided for in the cotton sale to Lehman, Durr & Co. It was one of the provisions of that contract, that Lehman, Durr & Co. should pay them $548. In this respect, they stood precisely in line with Leinkauff & Strauss. They accepted the *263provision made for tbem, and thereby estopped themselves from assailing tbe cotton sale made to Lehman, Durr & Co. And so long as the transaction remained as originally agreed on, they would not be heard to gainsay the validity of the provision therein made for Leinkauff & Strauss.—Sloan v. Frothingham, 72 Ala. 589; Hatchett v. Blanton, Ib. 423.

When, however, Leinkauff & Strauss refused to accept the provision made for them, and took steps to set the sale aside as fraudulent, this released the promise as made by Lehman, Durr & Co. to pay them, and left the fund subject to attachment at the suit of any of Harris’ creditors, if the other facts authorizing attachment existed. We are not able to perceive any reason why Forcheimer & Co., because they were also provided for in the sale, should be debarred this right. It was not an attempt to claim against the deed, after accepting a benefit conferred by it. It was, at most, an effort to condemn what had not been allowed to pass by the provisions of the deed.

Affirmed.