Levy v. Bloch & Co.

88 Ala. 290 | Ala. | 1889

SOMERYILLE, J.

-The action is one in tort, and was commenced by the appellees, Bloch & Co., before a justice’s court, the plaintiffs claiming to be assignees of a rent note given by certain tenants to Blunt & Marshall as landlords. It is averred, as the gravamen of the action, that the defendant received and converted cotton which was subject to this lien, with full notice of the plaintiffs’ rights. — Thompson v. Powell, 77 Ala. 391.

The only defense set up is the alleged invalidity of the older rent note of which the plaintiffs claim to be the assignees, coupled with the claim that the defendant himself holds a valid and properly executed rent note from the same tenants. It is contended that the note held by plaintiffs, and which purports to have been signed by the tenants, Sim Phillips and Billy Phillips, was invalid, because the names of these parties were subscribed by one of the promisees, Blunt & Marshall; that the reputed makers could not write, and there were no attesting witnesses to the instrument, and no authorized mark formally made by the makers.

It may be admitted, on this state of facts, that a recovery on the note conld have been defeated by the interposition of a plea of non est factum by the makers, had it been made the foundation of a suit against them. — Carlisle v. Campbell, 76 Ala. 247. But the fact of its execution would not be put in issue, in such direct suit, without a verified plea denying-its execution. In other words, it will be presumed to have been executed by the authority of the makers, and be binding on them, until they repudiate its binding efficacy, where it either purports to be executed by them, or is averred to have been so executed. — Wimberly v. Dallas, 52 Ala. 196; Code, 1886, § 2770; Bickley v. Keenan & Co., 60 Ala. 293; Brown v. Butchers & Drovers Bank, 6 Hill (N. Y.), 443; 41 Amer. Dec. 755; Zann v. Haller, 71 Ind. 136; 36 Amer. Rep. 193. Such an instrument, to say the least, is not a nullity.

The facts in the present case make it binding on the defendant, on the principle of estoppel. The defendant recognized the superior validity of the plaintiffs’ lien on the cotton raised by the tenants who made the note, and was permitted to ship the cotton on the faith of his promise to pay the note. He was thus enabled to make way with the cotton so as to greatly embarrass, if not entirely defeat, the enforcement of the landlord’s lien by the process of attachment. This was a clear detriment to the plaintiffs, and it would be a fraud on them now to permit the defendant to deny the superior validity of their lien. This promise is not made the basis or foundation of the action, as supposed by appellant’s counsel. It is made only the foundation of an estoppel, which prevents the defendant from denying a fact which he once admitted, and on the alleged truth of which the plaintiffs were induced to act to their prejudice.

The City Court, in our opinion, committed no error in finding for the plaintiffs, and its judgment is affirmed.