117 Ala. 468 | Ala. | 1897
Thompsonin his answer to the bill states, that “Jordan
If the deposit of said collaterals was made to secure past indebtedness, according to the terms of a previous arrangement and agreement between the parties, at or before the indebtedness was contracted and as a condition of its being contracted, that such deposit of collaterals should be made to secure the payment of the account, then, under the rulings of this court, Robinson & Thompson, in whosé dealings with Jordan & Sons, as the evidence shows, there was no usury, would be entitled to protection against equities and defects of which they had no notice:—Miller v. Boykin, 70 Ala. 469, supra ; Boykin v. Bank of Mobile, 72 Ala. 763, supra; Smith v. Lehman, 85 Ala. 394.
Examined as a witness in the cause, Thompson stated, that “about the 15th January, 1892, W. J. Jordan, of Jordan &' Sons, in response to my request to further se.~ cure the account, according to our previous agreement, came to Montgomery, and brought with him this note and mortgage of Thos. J. Maddux. At that time, I held about 1,300 bales of cotton'for Jordan & Sons, against which they had already drawn nearly its full value, and cotton was steadily declining. Jordan & Sons wanted me to hold this cotton, stating that they believed the price of cotton would go up. They also wished some further advances. I was unwilling to hold the cotton, and make further advances, without additional security, but agreed to do so, if this note and mortgage for $3,000. were assigned to me as collateral- to protect me against any loss that might be thus incurred.”
It is evident, therefore, according to Thompson’s admissions and evidence, that said note and mortgage were taken as collateral' and additional security for past in
Jordan, in his examination for complainant, stated that “the Maddux note and mortgage were never transferred to Thompson at any time. They -were simply placed in his hands to indemnify him in holding cotton until the 15th April, 1892. These papers were not placed in his hands to get money on, or to secure him for money already got from him, but was solely, as stated, to get and secure him in holding our cotton until the 15th April, 1892, and longer if necessary, which he had agreed to do in consideration of these papers and othei’s being placed ixx his hands.” Again he says, “our cotton was placed to- secure all our indebtedness to them, and was not intended to secure oxxe item more than another.” According to Jordan’s eviderxce, in denial of Thoxnpson’s defense, the xxote axxd mortgage were only collateral, additional to' the cotton, to secure them against loss in holdxxxg the cotton. It is also manifest froxn Jordan’s statement, that these collaterals were good'in'Thoxnpson’s hands for axxy past indebtedness, that the cotton was pledged for, — a fact distinctly admitted by Jordaxi & Sons in their answer. It should be stated, that it does not appear that .Thoxnpson lost anything, axxd if so, how much, in holding the cotton until he sold it oxx the 4th March, 1892, or what Jordan & Sons lost, if anything, by his sellixig it before 15th April of that year.
We must hold, upoxi this state of px’oof, that Thompson’s defexxse that the note and mortgage were placed in his hands and held by him, in accordaxxce with an agreement by Jordan & Sons that they would deposit them, at the time they contracted said indebtedness, as collateral security for the -debt, fails for the want of proof, and that they were not bona fide purchasers as to the complainant, Maddux.
The defendant, Thompson, by his solicitor, excepted to the .findings of the register, which exceptions were severally overruled by the court.
There was no error in overruling exception No. 1. The ground of objections was, that there was no evidence to sustain it, whereas there was evidence to that effect, and it has not been made to appear that the finding was erroneous.
The second exception pertains to the allowance of the credit to Maddux for 144 .instead of. 114 bales of cotton delivered by him to Jordan & Sons. The several exceptions to the allowance of this item are not made in accordance with rule 93 of chancery practice, and it was not error, therefore, to refuse to sustain the exceptions, although they may have been well taken.—Mooney v. Walter, 69 Ala. 75 ; The State v. McBride, 76 Ala. 52 ; Warren v. Lawson, ante p. 339. For like reasons, and Others, there was no error in overruling exceptions 3
The decree, on the appeal of Thompson, must be affirmed.'
The cross-bill filed by Jordan & Sons, — for the dismissal of which on final decree rendered on pleadings and proofs, they prosecute an appeal and assign errors on the record, — was intended to reach and eliminate from Robinson & Thompson’s account against them, items for advances by them for Jordan & Sons as margins for. the purchase of cotton futures. The proof is abundant to show, that these dealings were conducted.by Robinson & Thompson at the instance and request, and for the accommodation of Jordan & Sons, and in the name of the latter firm, with parties in New York with whom they made deals in futures through Thompson. It was all done in that State, in the name of Jordan & Sons, and the account was so kept by the parties, there, to-the contracts. Thompson had no interest in the matter, except to oblige a customer, and made no charge for conducting the business. There was nothing in the transactions of a gambling nature, as charged, to avoid the liability of the Jordans to Robinson & Thompson for money paid for them on that account. We discover no other necessity for the cross-bill, and there was no error in dismissing it, on final decree.—Peet v. Hatcher, 112 Ala. 514; Hawley v. Bibb, 69 Ala. 52.
Affirmed.