7 Div. 184. | Ala. | Jun 8, 1922
The plaintiff, appellee, sued defendant, appellant, stating its case in count A, eliminating other counts theretofore filed. So far as presently important, count A reads:
"Plaintiff claims of the defendant $3,000, with interest thereon, for that whereas, on or *113 about March 1, 1918, Bird Coal Iron Company of Talladega, Ala., was indebted to plaintiff and Commercial Credit Company, of Baltimore, Md., in the sum of, to wit, $3,627, which was due from said Bird Coal Iron Company on an account for fire brick which had been sold and delivered to said Bird Company by Southern Refractories Company of Ft. Payne, Ala., and which account was at said time the property of the plaintiff and said credit company, and which said indebtedness and account said then owners sold to defendant at and for the sum of $3,627, which defendant agreed to pay plaintiff and said credit company for said account and said indebtedness, and defendant did pay them the sum of $627 thereon shortly thereafter, leaving a balance due thereon to plaintiff and said credit company of $3,000, and plaintiff and said credit company agreed with defendant to file said claim in the bankruptcy proceeding against said Coal Iron Company, and give defendant credit for such dividends as were paid thereon by the United States Court sitting in bankruptcy, where said cause was pending, which they did or caused to be done, and there was paid to them as such dividends the sum of, to wit, $188.87 on the 25th day of May, 1918, to which sum defendant is entitled to credit, and plaintiff avers that thereafter, and before the commencement of this action, the interest of said credit company in said account and said indebtedness became and was the property of the plaintiff, who owned the same in its entirety at the time of the commencement of the action, and who still owns the same."
The declaration is on the defendant's promise to pay the agreed price for the account against the Bird Coal Iron Company sold by the plaintiff and another to defendant. The action is to recover the purchase price in the sale of a chose in action. The count is not demurrable. The averments relating to the filing of the account as a claim in the bankruptcy court (in whose name is not averred), and the application of dividends received in that administration of the bankrupt's estate to the credit of defendant's indebtedness created by his promise to pay said sum in the purchase of the account, did not detract from the effect of the antecedent allegations of an effectual assignment of the account to defendant. Under the averments of this count, the statute of frauds could not be applicable. It did not declare on any promise of the defendant to pay the debt of a third person, viz. Bird Coal Iron Company, within the purview of the statute of frauds. The consideration for defendant's promise was the account against the Bird Company. Under the averments of count A the fact that a poor bargain was consummated, if so, is not material. The demurrer was properly overruled.
It has been held here that an effectual, property-passing assignment of a chose in action may be made by parol. Wells v. Cody,
"There must be enough done, however, to evince an intention to transfer or assign eo instante, as distinguished from a mere offer or purpose to do so. The owner must do or say something which would indicate a transfer of his claim or right to another."
Consistent with the doctrine of these decisions delivery of a draft of the account is not essential to an effectual assignment. At the following citations will be found interesting collations of the authorities on the subject: Hooker v. Eagle Bank,
The reliance of the plaintiff to show a sale and purchase of the account, as averred, was placed in statements made by an "executive committee," composed of Stebbings, Hiroaka, and the elder Bird, to which, to state generally plaintiff's contention, defendant had delegated the authority to take charge of and repair for operation the furnace, formerly owned by the Bird Coal Company, defendant had shortly theretofore acquired. Under the whole evidence the solution of these major inquiries was for the jury: (a) Whether this "executive committee," or a member or members of it, was or not authorized, as agent or agents of defendant, to purchase this account; and (b) if so, whether an intention to accomplish an assignment of the account to defendant characterized the dealing between Ladd (agent of the sellers of the brick to the Bird Company) and the "committee" or one or more of its so authorized members. Bearing in mind the true issues tendered by and resulting from the averments of count A, the trial court did not err in refusing special requests for instructions numbered 1, 4, 8, 9, 10, 13, 14, and 15. An important inquiry of fact was the extent of the authority conferred on the "executive committee" or on Stebbings, Bird, or Hiroaka, or any of them. The law of agency, in such circumstances as are here involved, has been often stated by this court; repetition is not necessary. Clark v. Eufaula Brick Works,
The court erred in permitting, over defendant's aptly grounded objection, this question to the witness E. J. Bird, Jr.: "For whom was this executive committee acting?" The answer was that the committee was acting "for" this defendant. The question called, improperly, for the witness' opinion or conclusion on a material issue in the case. Clark v. Eufaula Brick Works,
On redirect examination of plaintiff's witness Ladd these questions were allowed over defendant's objections:
"In reference to assigning the claim after you sold it to Mr. Tison, to this executive committee, state whether or not you did all in reference thereto that any of Tison's servants or agents or attorneys requested you to do. Did you leave anything undone that they asked you to do?"
"Did this executive committee or anybody else write Tison, objecting to the method or manner in which the claim was handled?"
The first question assumed the existence of the relation of agency on the part of the "executive committee" to defendant as principal, and the authority under it to bind defendant in the purchase of the account. It also assumed that the sale of the account was so effectually accomplished as to bind defendant in the premises. It was error to admit the question over the objections in grounds 2 and 3, that an inadmissible conclusion or opinion of the witness was thereby invited.
The second question was also erroneously admitted. The authority of the "executive committee" to bind defendant through this transaction could not be established, in any degree, by the failure or omission of the "committee" or of "anybody else" to write "Tison [i. e., defendant] objecting to the method or manner in which the claim was handled."
For the errors indicated, the judgment is reversed and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.