61 So. 274 | Ala. | 1913
The reporter will set out, in his report of this case, Exhibit C to the bill of complaint.
1. The equity of the complainant’s bill cannot be supported unless the Bteagall-Cheairs Fertilizer Company possesses an equitable lien upon one-half of the proceeds of fertilizers which were sold by said company and Robert Newman to the Bethune Mule Company under the above contract. We gather from the allegations of the bill of complaint that said fertilizer company and Robert Newman sold, as it was ordered by the Bethune Mule Company, fertilizers to said mule company, and said fertilizers so purchased by the said mule company- were, in the usual course of its business as a merchant, sold, in various amounts, to various and sundry people, some of which was paid for in cash, for some of it notes were given, and some of it was charged by said mule company to its customers as items in their accounts with said mule company. The mule company executed to the fertilizer company notes for the amounts Avhicli it OAved the fertilizer company for fertilizers so purchased and sold; but it did not deliver to the fertilizer company any cash, notes, accounts, or other proceeds received by it for the fertilizers sold by it to its customers. The bill fails to allege that the fertilizer company ever made any demand upon said mule company for such “cash, notes, accounts, or other proceeds.”
In equity the term “lien” is used to denote a charge or incumbrance on a thing, where there is neither a jus in re nor jus ad rein, nor possession of the thing.— Donald & Co. v. Hewitt, 33 Ala. 534, 73 Am. Dec. 431.
The above definition is indeed broad, but it is not broad enough to cover the situation in this case. When the above contract was made, there was no fertilizer in the possession of the mule company which it had bought from the fertilizer company. 'When the fertilizer was bought by the mule company from the fertilizer company, the fertilizer was the mule company’s fertilizer, and, with the knowledge of the fertilizer company, that fertilizer, was bought by the mule company to sell to its various customers as a merchant. The mule company was certainly not the agent of the fertilizer company in the matter. — Jackson v. State, 2 Ala. App. 226, 57 South. 110.
It cannot be contended that the fertilizer company possessed a lien upon the fertilizer before it was sold by the mule company. The fertilizer, under the express letter of the contract, was, upon its delivery to the mule company, the absolute property of the mule company; and how we can be expected to declare, in favor of the complainant, a lien upon the proceeds of the fertilizer when it did not possess a lien upon the fertilizer at the time it was sold, before it was sold, or at any other time,' we are unable to understand. There was- no charge or incumbrance on the thing — i. e., the fertilizer before it was sold — and, this being true, there cannot be a charge
It seems to us that this case falls clearly within the doctrine announced in Shackelford v. Kiser Co., 131 Ala 224, 31 South. 77. Were we to hold otherwise we would be confronted with the most anomalous situation. It would he possible, if the contention of the complainant is correct, for a merchant to own, absolutely, a large stock of goods, wares, and merchandise and yet, under contracts similar to the one now under consideration, a merchant in New York might have a lien upon the proceeds of all the shoes sold by him, a merchant in New Orleans might have a lien upon the proceeds of all the hats sold by him, a merchant in Chicago might have a lien upon the proceeds of all the gloves sold by him, and so on, ad infinitum. Such a situation could not, of course, exist in any community governed by enlightened laws. We do not deem it necessary to pursue this discussion further.
Affirmed.
