After, the law, ex debito justitiæ, will imply a prom-
Nor is any privity in fact between the
ise.
Where one man has money
parties necessary.
which ex equo et bono belongs to another, if
there be no contract modifying the general lia-
bility, the person entitled to the money may
an action for money had and
recover it in
received, and this although he knows nothing
of the party who has the right; the law itself
creates the privity and the promise."

contracts for the payment of money.
the order for an interpleader is made, the
money in controversy deposited in court, and
the original defendant discharged, two par-
ties (two at least) are before the court, nei-
ther of whom has any semblance of a right of
action at law against the other. In Clark v.
Mosher, supra, a like case, in which, as Judge
Stone observed in Nelson v. Goree, 34 Ala.
565, the court was proceeding under a stat-
ute, of which ours is almost a literal copy, it
was said: "No right of trial by jury ever
existed in such a case"-this, it may be sup-
posed, because the court was proceeding ac-
cording to equity. Without attaching too
much importance to the last-quoted author-
ity, in our opinion the court in such case
should dispose of the money in its keeping on
equitable principles, not necessarily prin-
ciples peculiar to the administration
equity, but such principles as are customarily
recognized and enforced in both courts of law
and equity in respect to the ownership of
In the case
money or the right to money.

of

are no

If the original defendant were in court opposing appellants' claim, there might be some technical difficulty; but as between appellee and substituted defendants there technical difficulties. The simple question is to whom in good conscience should the money be awarded. And so in garnishment, a statutory proceeding, but administered upon equitable principles. Allen v. Woodruff, 2 Ala. App. 419, 56 So. 247

[10] Otherwise, it would have been the duty of the court on appellants' motion to transfer the cause to the equity side. Appellee while conceding this (subject, of course, to her contention that appellants showed no

presented there appears no occasion for re-equitable right), now insists that the statute sort to those processes and remedies which are peculiar to the court of chancery, and it

providing for the transfer of causes from one jurisdiction to the other allows no appeal in case the application for a change is denied, and therefore that such denial could not be considered for error on this appeal, if it were necessary to go that far with the case. This court considered the propriety of an order denying transfer in Briggs v. Prowell, 207 Ala. 629, 93 So. 590, thus by necessary implication at least denying appellee's contention at this point. We apprehend the rationale of the statute (Gen. Acts 1915, p. 830) to be that the judgment or decree denying a motion to transfer an interlocutory judgment or decree may be assigned for error on appeal from a final judgment of the court, in which the order is made under the provisions of the General Statute of Appeals, section 2837 of the Code of 1907. But the provision authorizing specifically an assignment of error on the judgment or decree transferring the cause was considered proper or perhaps necessary, because such judgment or decree is made on the other side of the court. Oth

may well be conceded that the law court would not be authorized to employ them. Insured, for the future safety of his contract, might well have resorted to that court, but now that the present right to the money in the keeping of the court is to be determined once for all, a resort to some such peculiar equitable process, even if allowed, would be a wholly useless performance. We can see no sufficient reason why the court should not render its judgment according to equity; that is, by assuming that to have been done which on the facts before us ought to have been done during the lifetime of the insured, or by giving effect to those more general principles of equity which obtain in both courts alike. Thus general assumpsit is an equitable action and lies to recover any money which ex aequo et bono belongs to the plaintiff. Batson v. Alexander City Bank, 179 Ala. 499, 60 So. 313. The court holds the money in trust for the true owner as did the insurance company. "But where the execution of the trust creates a mere monied de-erwise a resort to mandamus would be necesmand upon the trustee for a sum certain, or which may be reduced to a certainty by a reference to something else, there is no principle of law which would render necessary a resort to equity." Hitchcock v Lukens, 8 Port. 339. On another phase of the controversy presented we may repeat what was said in Allen v. Mendelsohn, 207 Ala. 527, 93 So. 416, 31 A. L. R. 1063:

"No agreement is necessary; assumpsit will lie wherever the circumstances are such that

sary. Nothing said in Crocker v. Goldstein, 209 Ala. 172, 95 So. 873, conflicts with this view of the statute.

The authorities are greatly confused, but on the whole this court is of the opinion that the facts shown by the record, as it now stands, authorized and required a judgment in favor of appellants.

Reversed and remanded.

ANDERSON, C. J., and GARDNER and MILLER, JJ.,

concur.

riage with one Georgia, who now claims to JOHNSON v. REPUBLIC IRON & STEEL be his widow. During these years appellant CO. (6 Div. 147.)

(Supreme Court of Alabama. Oct. 30, 1924. Rehearing Denied Nov. 20, 1924.)

1. Master and servant 388-Wrongfully abandoned wife not supported by husband held not entitled to compensation; "dependent."

Wife, whom deceased had wrongfully aban-
doned and ceased to support for 10 years prior
to his death, was not entitled to compensation
within Acts 1919, p. 217, § 14 (a), defining wife
as dependent, "unless voluntarily living apart
or unless * *
husband was not

contributing to her support."
[Ed. Note. For other definitions, see Words
and Phrases, First and Second Series, De-
pendent.]

2. Constitutional law 70(1)-Court cannot
add or subtract terms to make statute con-
form to opinion.

Court has no authority to add or subtract terms in order to bring statute into better accord with its opinion as to what it ought to be.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Petition by Ellen Johnson against the Republic Iron & Steel Company for compensation under the Workmen's Compensation Act. From a decree or judgment denying compensation, petitioner appeals by certiorari with bill of exceptions. Affirmed.

Reuben H. Wright and Leigh M. Clark, both of Tuscaloosa, and Frank Bainbridge, of Birmingham, for appellant.

and her said husband lived apart and he contributed nothing to her support. These conclusions are in agreement with the findings of the circuit court as shown by the record.

By statute it is provided (Acts 1919, p. 217): "14. Who are dependents, and allowances to each.-(1) Wife and children conclusively presumed wholly dependent; when. For the purposes of this act the following described persons shall be conclusively presumed to be wholly dependent:

"(a) Wife, unless it be known [meaning 'shown'] that she was voluntarily living apart death, or unless it be shown she was not marfrom her husband at the time of his injury or ried to the deceased at the time of the accident or for a reasonable period prior to his death, or unless it be shown that the husband was not in any way contributing to her support."

Appellant, as we have in effect already said, was not voluntarily living apart from her husband-so far as she was concerned her separation from him was involuntary. But she had all along been the lawful wife of deceased. So then the only question presented is, what did the Legislature intend when it adopted its concluding alternative "unless it be shown that the husband was not in any way contributing to her support?" If the way were open to us we would prefer to hold, as did the Supreme Court of Ohio in Industrial Commission v. Dell, 104 Ohio St. 389, 135 N. E. 669, that "dependency rests upon an obligation of support, and not upon the question as to whether that obliga

Percy, Benners & Burr and Salem Ford, tion is being discharged," and so that a recreall of Birmingham, for appellee.

ant husband could not relieve himself of the obligation to support a dutiful wife by his mere defiant refusal to discharge that obligation. But here, unfortunately for appellant's contention, words could hardly make it clearer that the Legislature intended to make the fact that the husband, at the time of his injury or death, was not contributing to his wife's support a sufficient reason for denying to her any compensation under the act, and this without regard to whether at that time they were living together or apart. In case the husband is contributing to the wife's support, so much of the statute as we have quoted above, for all the purposes thereby sought to be accomplished, declares conclusively the wife to be wholly dependent. See in this connection Ex parte Thomas, 209 Ala. 276, 96 So. 233. Its necessary effect is to leave the question of the wife's depend

SAYRE, J. Certiorari with bill of exceptions to review the finding and decree of the circuit court denying compensation to appellant under the Workmen's Compensation Act. The theory of appellant's case is thus expressed in the outset of her brief: A widow who has been wrongfully deserted by her deceased husband and who was involuntarily living separate and apart from him at the time of his death, is entitled to receive compensation from his employer under the provisions of the act, even though he was not contributing to her support in any way at the time of his death. We regret our inability to construe the statute as it must be construed to make appellant's claim of compensation effectual, or rather, we will say, the statute has been so framed as, very plainly, to exclude appellant in her circumstanc-ency, in case the husband was not in any es from its benefits.

[1, 2] Appellant and the deceased employee, Curtis Johnson, were man and wife, but 10 years or more before his death Curtis had voluntary and wrongfully abandoned appellant, and had entered into a bigamous mar

way contributing to her support, to be determined elsewhere and upon different considerations, and, if this were the whole of the statute on this particular subject, we could see our way to the adoption of the Ohio decision, supra. But the statute in

(102 So.)

custom of settling for cotton on official spot quotations of New Orleans Exchange held admissible; "prices current."

subsections 3 and 3A defines total and par- [ 3. Customs and usages ~15(1)-Evidence of tial dependents-and, of course, the only purpose of the statute is to provide for dependents, total or partial-in a way to exclude appellant from the benefits it proposes to confer. These subsections define the status of the wife (along with others) as wholly or partially dependent according as she is "wholly supported"—that is, supported in factor regularly derives a part of her support again, support in fact—from the earnings. of the deceased workman, and, in connection with subsection 15 and other parts of the statute not necessary to be repeated, provide for the distribution among total and partial "actual dependents" of the compensation to be awarded. These arrangements exclude appellant, nor has the court authority to add or subtract terms in order to bring the statute into better accord with a different opinion as to what it ought to be.

The cases from other jurisdictions have contributed nothing to our consideration of the case in hand, for nowhere else, so far as we are informed, is there a statute like that of this state in the particular in question. It will be found upon examination that elsewhere the courts have been left to formulate their own proper definitions of dependency, whereas in this state the Legislature has defined dependency in its own unmistakable language. It follows that the judgment of the trial court, denying compensation to appellant, must be affirmed. Affirmed.

Evidence of well-known trade custom or usage that cotton, sold at price to be fixed leans, be settled for on official spot quotations on basis of value of spot cotton, in New Orof that date, which are made by New Orleans Cotton Exchange under general supervision of federal Department of Agriculture, in maintenance of bona fide spot market, under Cotton Futures Act, §§ 5-8 (U. s. Comp. St. §§ 6309e63091) held admissible on issue of market or value of strict middling cotton in New Orsuch quotations, circulated daily through publeans on day of seller's call for settlement; lic press, becoming "prices current," which are presumptive evidence of value at place and time, under Code 1907, § 3977, citing 6 Words and Phrases, p. 5548, "Price Current."

[Ed. Note-For other definitions, see Words and Phrases, Price Current.]

4. Sales 77(1)—Contract for sale at price on future date construed according to intent expressed when made.

Contract for sale of cotton at prices to be fixed on future date must be construed according to intent expressed on date when made, and cannot be influenced by unusual conditions in market on day of seller's call for settlement. 5. Judgment 251(1)—Judgment in amount contended for by neither party to action for balance due under contract of sale on call held erroneous.

Judgment in amount based on price contended for by neither party to action for balance due on cotton sold at price to be fixed on

ANDERSON, C. J., and GARDNER and future date held erroneous; legal rights of parMILLER, JJ., concur.

MAXWELL PLANTING CO. v. A. P. LOVE-
MAN & CO. (6 Div. 47, 47a.)

(Supreme Court of Alabama. Oct. 23, 1924.
Rehearing Denied Nov. 27, 1924.)

ties and interest of public at large demanding finding on basis of value in keeping with contention of one side or other.

6. Sales 87(1)-Sale of cotton on basis of value in New Orleans on future date presumed to mean market value, according to official quotation on New Orleans Cotton Exchange.

Sale and delivery of cotton, at price to be fixed at future day on basis of value of spot 1. Sales 184-Call for settlement for cot- cotton in New Orleans, is presumed to mean ton purchased held sufficient.

Under contract for sale of cotton, price to be fixed at future day on basis of price for strict middling spot cotton in New Orleans, call for settlement naming price midway between reported prices of middling and good middling, held sufficient, naming of supposed price in notice being surplusage, not binding on either party, unless accepted by both; the purpose of call being to advise purchaser of date of settlement and whether seller elected return of cotton or settlement on reported price.

2. Sales 184 Purchaser held to have waived irregularity in call for settlement. Purchaser not objecting to form of call for settlement for cotton, but treating it as sufficient, as shown by his letter of same date, fixing price from his viewpoint, waived any irregularity in call.

market value, ascertained, reported, and pub-. lished as official quotation on spot cotton on New Orleans Cotton Exchange, and burden of proof is on one asserting that different standard was intended.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.

Action by the Maxwell Planting Company From the against A. P. Loveman & Co. judgment, both parties appeal. Reversed and rendered, on direct appeal; affirmed on cross-appeal.

The contract, the basis of the suit, is as follows:

"Tuscaloosa, Ala., August 23, 1917. "State of Alabama, Tuscaloosa County. "Be it known that we, A. P. Loveman & Co. (a partnership composed of E. P. Loveman

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and D. L. Rosenau), doing business in the city | Maxwell Planting Company all the balance of Tuscaloosa, Ala., and the Maxwell Planting due them above amount advanced. In the Company (a corporation doing business in the event of the return to the Maxwell Planting county of Tuscaloosa), do by this agreement Company of the cotton as specified in clause enter into the following contract: No 1, the Maxwell Planting Company will return to A. P. Loveman & Co. all money advanced to them by A. P. Loveman & Co. except the one hundred and sixteen ($116.00) dollars paid to the Maxwell Planting Company by A. P Loveman & Co. for the use of the cotton. "In witness whereof, witness our hands and seals, this the 23d day of August, 1917. "A. P. Loveman & Co,

(102 So.)

excess of the value of strict middling spot cotton in New Orleans that day. What was the true value under the contract arises under the second inquiry to be discussed later. The demand placed the price of strict middling cotton midway between middling and good middling as quoted in the telegram. We conclude the call was sufficient, for the following reasons:

[2] Under the contract the purposes of the call were: (1) To advise the purchaser of the date of call; (2) to elect whether cotton of like quantity and grade should be returned, or settled for on the price basis stipulated. The notice given furnished this information. 13 C. J. p. 661, § 745, and notes. The price basis for settlement was already fixed by contract, and, naming the supposed price in the notice was surplusage, not binding on either party unless accepted by both. Moreover, no objection to the form of the call was made at the time, but was treated as sufficient, as shown by letter from defendant of same date fixing the price of the cotton sold from defendant's viewpoint. This would constitute a waiver of any irregularity in the call. The case is different in principle from that presented in Leiter v. Emmons, 20 Ind. App. 22, 50 N. E. 40, where the contract called for payment in specific personal property, and the demand did not conform thereto.

The record presents voluminous testimony, and objections thereto, touching the issue thus presented. A general outline will suffice.

The by-laws of New Orleans Cotton Exchange (art. 7) provided for daily quotations of spot cotton as follows:

"Article VII.

of not less than three (3) members of the
"A committee on spot quotations to consist
board of classers shall be appointed annually
by the board of directors at its first meeting
in December, and vacancies in said committee
from any cause shall be filled by the board of
directors as occasion may require. It shall be
the duty of said committee to meet at such
hours as may be designated by the board of
thereof shall constitute a quorum.
directors and a majority of the members

"At each daily meeting, the committee shall establish and announce the quotations for spot cotton as sold in this market by factors and others on spot terms which shall show the actual commercial differences between grades in the manner and under the conditions prescribed in the United States Cotton Futures Act, § 6, and in accordance with such rulings as the Secretary of Agriculture may from time to time promulgate.

"Whenever the value of one grade is to be determined from the sale or sales of spot cotton of another grade or grades, such value shall be fixed in accordance with rules and [3] The major question for our decision regulations which shall be prescribed for the is the market price or value of strict mid-purpose by the Secretary of Agriculture. The dling cotton in New Orleans on the day of the call, April 19, 1918.

The contract was between producer and buyer, and it is agreed that the contract related to the market price of spot cotton in New Orleans. James R. Maxwell and E. P. Loveman, who negotiated and signed the contract for the parties, were both experienced cotton men, members or former members of the New Orleans Cotton Exchange, and familiar with the rules regulating spot quo

tations in the New Orleans market.

The plaintiff claims the market price or value was fixed by the official quotation of strict middling spot cotton as ascertained, reported, and published by the New Orleans Cotton Exchange through its committee on spot quotations. Thus quoted, the value was 33.88 cents per pound.

its

The view of defendant is expressed in letter to plaintiff dated April 19, 1924, as follows:

"In compliance with your request we advise having to-day fixed price on the one hundred and sixteen (116) bales cotton sold us under contract of August 23, 1917.

"We are advised that strict middling was traded in at New Orleans to-day at three hundred (300) points on May in that market. This would be 314 for strict middling in New Orleans based on the close of that market to-day."

committee may at their discretion take into consideration bona fide officers to buy or sell spot cotton and base, their quotations accordingly.

"All quotations shall be based upon the standards of this market as adopted by this Exchange and said quotations shall be posted prominently in the Exchange rooms."

The

On the day in question there were no sales of spot cotton in New Orleans to be taken as a basis for quotation. Under the rules, the committee was authorized in such case to investigate and take into account bona fide offers to sell or to purchase in fixing the market price of spot cotton. report for that day showed: "Market. Nominal sellers refusing to make concessions." It appears the future market had been on the decline for some days. Holders of spot cotton refused to break the market established several days before, and spot quotations