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(102 So.) contracts for the payment of money. After, the law, ex debito justitiæ, will imply a promthe order for an interpleader is made, the ise. Nor is any privity in fact between the money in controversy deposited in court, and parties necessary. Where one man has money the original defendant discharged, two par- there be no contract modifying the general lia

which ex equo et bono belongs to another, if ties (two at least) are before the court, neither of whom has any semblance of a right of recover it in

bility, the person entitled to the money may

an action for money had and action at law against the other. In Clark v. received, and this although he knows nothing Mosher, supra, a like case, in which, as Judge of the party who has the right; the law itself Stone observed in Nelson v. Goree, 34 Ala. creates the privity and the promise." 565, the court was proceeding under a statute, of which ours is almost a literal copy, it posing appellants' claim, there might be some

If the original defendant were in court opwas said: “No right of trial by jury ever technical difficulty; but as between appellee existed in such a case"-this, it may be sup- and substituted defendants there are posed, because the court was proceeding ac

technical difficulties. The simple question is cording to equity. Without attaching too much importance to the last-quoted author- be awarded. And so in garnishment, a stat

to whom in good conscience should the money ity, in our opinion the court in such case utory proceeding, but administered upon equishould dispose of the money in its keeping on equitable principles, not necessarily prin. App. 419, 56 So. 247

table principles. Allen v. Woodruff, 2 Ala. ciples peculiar to the administration equity, but such principles as are customarily duty of the court on appellants' motion to

(10) Otherwise, it would have been the recognized and enforced in both courts of law transfer the cause to the equity side. Apand equity in respect to the ownership of peliee while conceding this (subject, of course, money or the right to money. In the case

to her contention that appellants showed no presented there appears no occasion for resort to those processes and remedies which equitable right), now insists that the statute are peculiar to the court of chancery, and it providing for the transfer of causes from one may well be conceded that the law court jurisdiction to the other allows no appeal in would not be authorized to employ them and therefore that such denial could not be

case the application for a change is denied, Insured, for the future safety of his contract,

considered for error on this appeal, if it might well have resorted to that court, but now that the present right to the money in this court considered the propriety of an

were necessary to go that far with the case. the keeping of the court is to be determined once for all, a resort to some such peculiar order denying transfer in Briggs v. Prowell, equitable process, even if allowed, would be a

207 Ala. 629, 93 So. 590, thus by necessary wholly useless performance. We can see no implication at least denying appellee's consufficient reason why the court should not tention at this point. We apprehend the rarender its judgment according to equity; that tionale of the statute (Gen. Acts 1915, p. 830) is, by assuming that to bave been done which to be that the judgment or decree denying a

ent on the facts before us ought to have been motion to transfer an interlocutory ju

or decree may be assigned for error on ap done during the lifetime of the insured, or by giving effect to those more general prin- peal from a final judgment of the court, in ciples of equity which obtain in both courts which the order is made under the provisions alike. Thus general assumpsit is an equita- of the General Statute of Appeals, section ble action and lies to recover any money 2837 of the Code of 1907. But the provision which ex aequo et bono belongs to the plain. authorizing specifically an assignment of er. tiff. Batson v. Alexander City Bank, 179 ror on the judgment or decree transferring Ala. 499, 60. So. 313. The court holds the the cause was considered proper or perhaps money in trust for the true owner as did the necessary, because such judgment or decree

is made on the other side of the court. Othinsurance 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 sary. Nothing said in Crocker v. Goldstein, which may be reduced to a certainty by a 209 Ala. 172, 95 So. 873, conflicts with this reference to something else, there is no prin- view of the statute. ciple of law which would render necessary

The authorities are greatly confused, but å resort to equity." Hitchcock v Lukens, on the whole this court is of the opinion that 8 Port. 339. On another phase of the con- | the facts shown by the record, as it now troversy presented we may repeat what was stands, authorized and required a judgment said in Allen v. Mendelsohn, 207 Ala. 527, in favor of appellants.

Reversed and remanded. 93 So. 416, 31 A, L, R. 1063:

"No agreement is necessary; assumpsit will ANDERSON, C. J., and GARDNER and lie wherever the circumstances are such that 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.)

and her said husband lived apart and he

contributed nothing to her support. These (Supreme Court of Alabama. Oct. 30, 1924. Rehearing Denied Nov. 20, 1924.)

conclusions are in agreement with the find

ings of the circuit court as shown by the rec 1. Master and servant On 388—Wrongfully ord.

abandoned wife not supported by husband By statute it is provided (Acts 1919, p. 217): held not entitled to compensation; "dependent."

"14. Who are dependents, and allowances to Wife, whom deceased had wrongfully aban- each.-(1) Wife and children conclusively predoned and ceased to support for 10 years prior sumed wholly dependent; when. For the purto his death, was not entitled to compensation poses of this act the following described perwithin Acts 1919, p. 217, § 14 (a), defining wife sons shall be conclusively presumed to be wholas dependent, “unless voluntarily living apart

ly dependent:
or unless *
* husband was not

"(a) Wife, unless it be known (meaning contributing to her support."

'shown') that she was voluntarily living apart [Ed. Note. For other definitions, see Words death, or unless it be shown she was not mar.

from her husband at the time of his injury or and hrases, First and Second Series, De- ried to the deceased at the time of the accident pendent.]

or for a reasonable period prior to his death, 2. Constitutional law m70(1)-Court cannot or unless it be shown that the husband was

add or subtract terms to make statute con- not in any way contributing to her support." form to opinion.

Appellant, as we have in effect already Court has no authority to add or subtract terms in order to bring statute into better ac

said, was not voluntarily living apart from cord with its opinion as to what it ought to be. her husband-so far as she was concerned

her separation from him was involuntary. Appeal from Circuit Court, Jefferson Coun- But she had all along been the lawful wife ty; Joe C. Hail, Judge.

of deceased. So then the only question pre

sented is, what did the Legislature intend Petition by Ellen Johnson against the Re when it adopted its concluding alternative public Iron & Steel Company for compensa- "unless it be shown that the husband was tion under the Workmen's Compensation Act. not in any way contributing to her support?" From a decree or judgment denying com. If the way were open to us we would prepensation, petitioner appeals by certiorari fer to hold, as did the Supreme Court of with bill of exceptions. Affirmed.

Ohio in Industrial Commission v. Dell, 104 Reuben H. Wright and Leigh M. Clark, Ohio St. 389, 135 N. E. 669, that “dependency both of Tuscaloosa, and Frank Bainbridge, rests upon an obligation of support, and not of Birmingham, for appellant.

upon the question as to whether that obligaPercy, 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 SAYRE, J. Certiorari with bill of ex mere defiant refusal to discharge that obliceptions to review the finding and decree of gation. But here, unfortunately for appelthe circuit court denying compensation to lant's contention, words could hardly make appellant under the Workmen's Compensa- it clearer that the Legislature intended to tion Act. The theory of appellant's case is make the fact that the husband, at the time thus expressed in the outset of her brief: A of his injury or death, was not contributing widow who has been wrongfully deserted by to his wife's support a sufficient reason for her deceased husband and who was involun- denying to her any compensation under the tarily living separate and apart from him at act, and this without regard to whether at the time of his death, is entitled to receive that time they were living together or apart. compensation from his employer under the In case the husband is contributing to the provisions of the act, even though he was wife's support, so much of the statute as we not contributing to her support in any way have quoted above, for all the purposes there. at the time of his death. We regret our in- by sought to be accomplished, declares conability to construe the statute as it must be clusively the wife to be wholly dependent. construed to make appellant's claim of com- See in this connection Ex parte Thomas, 209 pensation effectual, or rather, we will say, Ala. 276, 96 So. 233. Its necessary effect is the statute has been so framed as, very plain to leave the question of the wife's depend. ly, to exclude appellant in her circumstanc- ency, in case the husband was not in any es from its benefits.

way contributing to her support, to be de[1, 2] Appellant and the deceased employ termined elsewhere and upon different conee, Curtis Johnson, were man and wife, but siderations, and, if this were the whole of 10 years or more before his death Curtis had the statute on this particular subject, we voluntary and wrongfully abandoned appel-could see our way to the adoption of the lant, and had entered into a bigamous mar- | Ohio decision, supra. But the statute in

For other cases see same tcpic and KEY-XUMBER in all Key-Numbered Digests and Indexes

(102 So.) subsections 3 and 3A defines total and par- / 3. Customs and usages On 15(1)-Evidence of tial dependents—and, of course, the only custom of settling for cotton on official spot purpose of the statute is to provide for de quotations of New Orleans Exchange held pendents, total or partial-in a way to ex

admissible; "prices current." clude appellant from the benefits it proposes

Evidence of well-known trade custom or to confer. These subsections define the status usage that cotton, sold at price to be fixed

on basis of value of spot cotton, in New Orof the wife (along with others) as wholly or

leans, be settled for on official spot quotations partially dependent according as she is "whol- of that date, which are made by New Orleans ly supported”—that is, supported in fact, Cotton Exchange under general supervision or regularly derives a part of her support-of federal Department of Agriculture, in mainagain, support in fact-from the earnings of tenance of bona fide spot market, under Cotton the deceased workman, and, in connection Futures Act, 88 5–8 (U. S. Comp. St. 88 6309ewith subsection 15 and other parts of the 6309i) held admissible on issue of market or statute not necessary to be repeated, provide value of strict middling cotton in New Orfor the distribution among total and partial such quotations, circulated daily through pub

leans on day of seller's call for settlement; “actual dependents” of the compensation to lic press, becoming “prices current,” which are be awarded. These arrangements exclude

presumptive evidence of value at place and appellant, nor has the court authority to time, under Code 1907, § 3977, citing 6 Words add or subtract terms in order to bring the and Phrases, p. 5548, "Price Current.” statute into better accord with a different [Ed. Note -For other definitions, see Words opinion as to what it ought to be.

and Phrases, Price Current.) The cases from other jurisdictions have 4. Sales 77(1)-Contract for sale at price contributed nothing to our consideration of

on future date construed according to intent the case in hand, for nowhere else, so far

expressed when made. as we are informed, is there a statute like

Contract for sale of cotton &t prices to be that of this state in the particular in ques- fixed on future date must be oonstrued accordtion. It will be found upon examination that ing to intent expressed on date when made, elsewhere the courts have been left to formu. and cannot be influenced by unusual conditions late their own proper definitions of depend- in market on day of seller's call for settlement. ency, whereas in this state the Legislature 5. Judgment Ow251(1)- Judgment in amount has defined dependency in its own unmis contended for by neither party to action for takable language. It follows that the judg balance due under contract of sale on call ment of the trial court, denying compensa

held erroneous. tion to appellant, must be affirmed.

Judgment in amount based on price conAffirmed.

tended for by neither party to action for bal

ance due on cotton sold at price to be fixed on ANDERSON, C. J., and GARDNER and future date held erroneous; legal rights of par

ties and interest of public at large demanding MILLER, JJ., concur.

finding on basis of value in keeping with contention of one side or other.

6. Sales Om87(1)-Sale of cotton on basis MAXWELL PLANTING CO. v. A. P. LOVE.

of value in New Orleans on future date pre

sumed to mean market value, according to MAN & Co. (6 Div. 47, 47a.)

official quotation on New Orleans Cotton (Supreme Court of Alabama. Oct. 23, 1924.

Exchange, Rehearing Denied Nov. 27, 1924.)

Sale and delivery of cotton, at price to be

fixed at future day on basis of value of spot 1. Sales C 184_Call for settlement for cot- cotton in New Orleans, is presumed to mean ton purchased held sufficient.

market value, ascertained, reported, and pubUnder contract for sale of cotton, price lished as official quotation on spot cotton on to be fixed at future day on basis of price for New Orleans Cotton Exchange, and burden of strict middling spot cotton in New Orleans, proof is on one asserting that different standcall for settlement naming price midway be- ard was intended. tween reported prices of middling and good middling, held sufficient, naming of supposed

Appeal from Circuit Court, Tuscaloosa price in notice being surplusage, not binding County; Henry B. Foster, Judge. on either party, unless accepted by both; the Action by the Maxwell Planting Company purpose of call being to advise purchaser of

From the date of settlement and whether seller elected against A. P. Loveman & Co. return of cotton or settlement on reported judgment, both parties appeal. Reversed and price.

rendered, on direct appeal;

affirmed on 2. Sales Om 184

cross-appeal. Purchaser held to have waived frregularity in call for settlement.

The contract, the basis of the suit, Purchaser not objecting to form of call for follows: settlement for cotton, but treating it as suffi

“Tuscaloosa, Ala., August 23, 1917. cient, as shown by his letter of same date, “State of Alabama, Tuscaloosa County. fixing price from his viewpoint, waived any "Be it known that we, A. P. Loveman & Co. irregularity in call.

(a partnership composed of E. P. Loveman For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

as

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 Compary will re"The Maxwell Planting Company agrees to turn to A. P. Loveman & Co. all money advancdeliver to A. P. Loveman & Co. (116) one ed to them by A. P. Loveman & Co. except the hundred and sixteen bales of cotton now in one hundred and sixteen ($116.00) dollars paid warehouses in the city of Tuscaloosa, Ala. to the Maxwell Planting Company by A. P. The said Maxwell Planting Company paying Loveman & Co. for the use of the cotton. all charges on said cotton to date of delivery. "In witness whereof, witness our hands and The Maxwell Planting Company to have said seals, this the 23d day of August, 1917. cotton hauled to the warehouse of the Tusca

"A. P. Loveman & Co, loosa Compress & Warehouse Company, where

“Pr. E. P. L. cotton is to be reweighed and each bale grad

"D. L. Rosenau. ed to the satisfaction of both parties to this

"Maxwell Planting Company, contract.

“By Jas R. Maxwell, Prest. "A. P Loveman & Co. agree to advance to

"James R. Maxwell: said Maxwell Planting Company 22¢ per pound “Witness: E. G. Parker." on the gross reweights of said cotton after said cotton has been prepared for shipment

Jones, Jones & Van De Graaff, of Tusand any damaged cotton picked off. Said A. caloosa, for appellant. P. Loveman & Co. charging no interest what Clarkson & Penick, of Tuscaloosa, for apever on said advance. Said firm also agree to pellee. pay to said corporation, at time of paying over said money so advanced, the sum of one hun BOULDIN, J. The suit is to recover the dred and sixteen dollars ($116.00), the same balance due on 116 bales of cotton sold by being for the use of said cotton by A. P. Love- Maxwell Planting Company to A. P. Love man & Co. to date of final settlement of this contract as hereinafter stated. The use of man & Co. by contract in writing dated Ausaid cotton being loaned to A. P. Loveman gust 23, 1917. & Co. by the Maxwell Planting Company from The cotton was cleaned up, weighed, graddate of delivery to them to date when Max- ed, and delivered, and the advance payments well Planting Company may call upon A. P. were made as agreed. There is no dispute Loveman & Co. either for the return to them as to any of these matters. of an equal weight of cotton of an equal grade

Two questions only are involved, viz.: (1) to these one hundred and sixteen (116) bales Whether there was a sufficient call for delivered to A. P. Loveman & Co. or for pay settlement as per contract. (2) What was ment of such cotton at its market value on the the “market value” on the day payment was day such payment is demanded. Said Max

demanded, April 19, 1918, "the market price well Planting Company by this contract having the conceded right to call for such settlement being on the basis of the value of strict on any date between October 1, 1917, and May middling cotton (6's) in the city of New Or1, 1918. The market price being on the basis leans on that day less seventy-seven (77) of the value of strict middling cotton (6's) in points expenses from Tuscaloosa, Ala., to the city of New Orleans on that day less sev- New Orleans, La." enty-seven (77) points expenses from Tusca (1) Taking up the first question, the evi. loosa, Ala., to New Orleans, La. It is agreed dence shows the following: between the parties to this contract that the

On April 19, 1918, James R. Maxwell, difference between grades shall be one-quarter president of plaintiff company, was in the (14) of a cent per pound. "It is mutually agreed between the parties

office of defendant company in Tuscaloosa to this contract that if fluctuations of the when the report of the market for spot cot. market cause either party to desire margins ton in New Orleans was received by wire. to be paid them by the other party to keep The telegram was handed to Mr. Maxwell themselves secure financially, said party so by Mr. Parker, manager of defendant's Tusdesiring has the right to demand such margin caloosa office. This report quoted middling and the party upon whom the demand is made cotton at 33 cents, and good middling at agrees to pay the proper amount to the party | 3434 cents, not giving the price of strict 80 demanding same. "A. P. Loveman & Co. agree to comply with Mr. Parker, “I will close out today that

middling. Maxwell thereupon stated to either demand made on them, as above, for a final settlement for the full value of said cot- 116 bales of cotton," and handed him a writ. ton_after deducting the amount advanced by ten notice, saying: A. P. Loveman & Co. to said Maxwell Plant

“In conformity with the terms of our coning Company.

tract with you, dated August 23, 1917, in the "(1) They will return cotton of equal weight matter of 116 bales of cotton, we hereby call and grade to cotton loaned for which the Max- upon you for settlement for the cotton on well Planting Company will pay them fifty (50) | the basis, as quoted by the New Orleans Cotcents per bale provided Maxwell Planting Com-ton Exchange of 33.625 cents per pound for pany wishes the cotton returned.

strict middling spot cotton in New Orleans." "(2) They will buy the weight and grade of cotton loaned at price on date called for as The objection raised to this call is that above provided for, if demanded, and pay said it demands settlement on a price basis in

(102 So.) excess of the value of strict middling spot | The record presents voluminous testimony, cotton in New Orleans that day. What was and objections thereto, touching the issue the true value under the contract arises un thus presented. A general outline will sufder the second inquiry to be discussed later. fice. The demand placed the price of strict mid The by-laws of New Orleans Cotton Exdling cotton midway between middling and change (art. 7) provided for daily quotagood middling as quoted in the telegram. tions of spot cotton as follows: We conclude the call was sufficient, for the following reasons:

“Article VII. [2] Under the contract the purposes of the call were: (1) To advise the purchaser of not less than three (3) members of the

"A committee on spot quotations to consist of the date of call; (2) to elect whether cot- board of classers shall be appointed annually ton of like quantity and grade should be by the board of directors at its first meeting returned, or settled for on the price basis in December, and vacancies in said committee stipulated. The notiee given furnished this from any cause shall be filled by the board of information. 13 C. J. p. 661, § 745, and directors as occasion may require. It shall be notes. The price basis for settlement was the duty of said committee to meet at such already fixed by contract, and, naming the hours as may be designated by the board of

directors and supposed price in the notice was surplusage, thereof shall constitute a quorum.

a majority of the members not binding on either party unless ac

"At each daily meeting, the committee shall cepted by both. Moreover, no objection establish and announce the quotations for spot to the form of the call was made at the time, cotton as sold in this market by factors and but was treated as sufficient, as shown by others on spot terms which shall show the acletter from defendant of same date fixing the tual commercial differences between grades in price of the cotton sold from defendant's the manner and under the conditions prescribed viewpoint. This would constitute a waiver in the United States Cotton Futures Act, $ 6,

and in accordance with such rulings as the of any irregularity in the call. The case

Secretary of Agriculture may from time to is different in principle from that presented time promulgate. in Leiter v. Emmons, 20 Ind. App. 22, 50 N. "Whenever the value of one grade is to be E. 40, where the contract called for pay- determined from the sale or sales of spot cotment in specific personal property, and the ton of another grade or grades, such value demand did not conform thereto.

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 sideration bona fide officers to buy or sell spot

committee may at their discretion take into concall, April 19, 1918.

cotton and base, their quotations accordingly. The contract was between producer and "All quotations shall be based upon the standbuyer, and it is agreed that the contract ards of this market as adopted by this Exrelated to the market price of spot cotton change and said quotations shall be posted in New Orleans. James R. Maxwell and E. prominently in the Exchange rooms." P. Loveman, who negotiated and signed the contract for the parties, were both experienc

Pursuant to these rules the members of ed cotton men, members or former members the committee on spot quotations, accomof the New Orleans Cotton Exchange, and panied by a representative of the United familiar with the rules regulating spot quo

States Department of Agriculture, call upon tations in the New Orleans market.

cotton factors and obtain reports of sales The plaintiff claims the market price or

and purchases of spot cotton each day. The value was fixed by the official quotation of resultant of these sales is made their restrict middling spot cotton as ascertained, port on the prices of spot cotton, which is reported, and published by the New Or posted on the floor of the Exchange. These leans Cotton Exchange through its commit- quotations go out by wire, and are publishtee on spot quotations. Thus quoted, the ed in the daily press throughout the cotton value was 33.88 cents per pound.

belt. The view of defendant is expressed in its

On the day in question there were no letter to plaintiff dated April 19, 1924, as

sales of spot cotton in New Orleans to be taken as a basis for quotation. Under the

rules, the committee was authorized in such "In compliance with your request we advise case to investigate and take into account having to-day fixed price on the one hundred bona fide offers to sell or to purchase in and sixteen (116) bales cotton sold us under fixing the market price of spot cotton. The contract of August 23, 1917.

report for that day showed: “Market. Nom"We are advised that strict middling was inal sellers refusing to make concessions.” traded in at New Orleans to-day at three hundred (300) points on May in that market. It appears the future market had been on This would be 31¢ for strict middling in New the decline for some days. Holders of spot Orleans based on the close of that market cotton refused to break the market establishto-day."

ed several days before, and spot quotations

.

follows:

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