63 So. 776 | Ala. Ct. App. | 1913
When this case was first considered on the original submission, we were of the opinion that the holding of the Supreme Court in the case of Tishomingo Sav. Inst. v. Johnson, Nesbitt & Co., 40 South. 503, was conclusive of the question that the trial court was in error in sustaining the plaintiff’s demurrers to the claim propounded by the claimant,,, in the instant case, and we reversed the judgment of the lower court on that authority. Upon consideration of the case on application for rehearing, we have reached a different conclusion, and have set out the reasons governing us in this determination, in stating what we deem to be correct principles of law applicable to the case at bar, and have distinguished this case from the case of Tishomingo Sav. Inst. v. Johnson, Nesbitt & Co., supra, and have withdrawn our former opinion. The case presented on the record before us shows that an attachment suit was brought in the trial court by Lerman Milling Company against J. R. Hale & Sons, to recover a debt alleged to be due by the latter to the former. The attachment was executed by serving a writ of garnishment upon the Farmers’ & Merchants’ Bank of Athens, who were supposed to be indebted to the defendants, J. R. Hale &
As we view the case, it is entirely immaterial whether or not the bill of lading, attached to the draft, was indorsed by defendants, J. R. Hale & Sons, to the claimants, since there is no litigation or dispute either about the title to the bill of lading or about the property represented by it. In fact, the plaintiff by the very act of suing out the writ of garnishment and endeavoring to reach the proceeds of the sale of the car of corn by defendants, J. R. Hale & Sons, to R. B. Wynne, the purchaser, upon whom the draft was drawn, and who paid it, admits a complete sale to Wynne and the validity and effectuality of the means employed to accomplish and perfect it. What the plaintiff is endeavoring to do
Is this legal status of the respective parties to the transaction, with respect to each other, in any wise altered by reason of the fact that the owners of the security (the defendants in this case), at the time they de
In Eufaula Gro. Co. v. Missouri Nat. Bank, 118 Ala. pages 412, 413, 24 South. 389, it is held that, even if a collecting bank fails, after collecting the draft and before remitting to the receiving bank, the loss falls on the owner. So in this case, if the proceeds of the draft should be seized by process of law while in the hands of the collecting bank, the garnishee here, and subjected
The claimant, as said, Avas not a purchaser of the draft, and had no interest Avhatever in it, since the liability it assumed by giving defendant credit for the face of it was conditional upon defendants’ seeing that the proceeds, when collected, actually reached its hands. The case would be different if claimant bank had purchased the draft, Avhich would have happened if it had at the time actually paid the defendants the cash, or other equivalent consideration, for it, or had, by agree
Here the allegations of the claim propounded by claimant bank are ambiguous, in that it does not clearly appear whether the claimant credited defendants with the amount of the draft as a payment or part payment of a book account defendants owed them, or merely credited it to them on the books as a depositor, and thereby assumed only a conditional liability to them, as such, for the amount of it. There is nowhere to be found an allegation that defendants, at the time of the credit, were in any way indebted to claimant. Pleadings are to be construed most strongly against the pleader; and, in the light, of the attendant facts set forth in the claim here, we must construe the allegation to the effect that claimant paid the defendants the amount of the draft “by giving their account with claimant credit for the amount of it” as meaning merely that claimant assumed a liability to defendants, as depositors in its bank, by crediting them with the proceeds of the draft. Claimant’s counsel in brief' do not contend for any other construction, or that the facts are otherwise. So construed, it will be seen, from what we have said, that it is our conclusion that the claimant, not being a purchaser of the draft, but only a conditional debtor to defendants, is not entitled to recover, and that the court properly sustained the demurrer to his claim. The proceeds of the draft were the property of defendants, and could be garnished in the hands of their agent. — Eufaula Gro. Co. v. Missouri Nat. Bank, supra.
The case of Tishomingo Savings Institution v. Johnson & Nesbitt, 40 South. 503, cited and urged upon us
The application for rehearing is granted, the original opinion is AvithdraAvn, the former judgment of reversal set aside, and the judgment of the lower court is affirmed.
Affirmed.