Auerbach v. Pritchett , 58 Ala. 451 ( 1877 )

STONE, J.

The £ cotton obligation,’ or promise to pay cotton, is not a promissory note, and is not one of the contracts enumerated in section 2890 of the Code of 1876, on which actions “must be prosecuted in the name of the party really interested, whether he has the legal title or not.” This is not a contract for the payment of money, but an obligation to cultivate land in cotton, and deliver the product to the payee, Clements. The legal title to the paper, and the right to sue upon it, passed to, and vested in Mrs. Clements, when she was appointed administratrix of her deceased husband. Between the death of Mr. Clements and her appointment, the legal title and right to sue were in abeyance. Her indorsement of the paper to Auerbach, made as it was before her appointment as administratrix, did not pass the legal title to him. She did not hold the legal title then, and could not transfer that which she did not own. Hence, when this bill was filed, the legal title was in her, in her representative capacity. 'It results that to any suit instituted for the enforcement of the contract, or any lien growing out of it, she was a necessary party; and Auer-bach, if entitled to the recovery, or a part of it, was also a proper party, that his interests might be protected.— See statement of facts in the case of Watts v. Gayle, 20 Ala. 817. This is not the case of a suit by several complainants, some of whom have no right of recovery. The recovery in this case, if one be had, is one and indivisible. It is the assertion of a lien, legally held by Mrs Clements as administratrix, in the fruits of which Auerbach claims an interest. There is no misjoinder of parties complainant, and the decree of the chancellor, sustaining the demurrer on that ground, was an error. — See, as to assignability of the obligation, Skinner v. Bedell, 82 Ala. 44; Henley v. Bush, 3 Ala. 686.

The order given by Clements, intestate, in favor of N. Collins & Co., is anterior in date to the claim of purchase by Auerbach. It is an order on Pritchett, the maker of the cotton obligation, to deliver to N. Collins & Co. enough cotton to pay a note they held against Clements for two hundred and seventy-one 22-100 dollars, “which will be credited on the note I hold against Mr. L. W. Pritchett.” This order was never accepted in writing. The testimony of Collins and Pritchett proves that before Auerbach’s claim accrued, this order was shown to Pritchett; that he stated he had found mortgages and incumbrances on the land he had bought, of which he had no notice at the time of his purchase, which he had paid, or would be required to pay, to save his land. That, after being allowed for such payments, if no other mortgages were produced, he would then deliver the cotton to them, in obedience to said order. This promise was made orally. No other mortgages were produced, and Pritchett, in December, 1875, delivered to Collins & Co. all the cotton produced on said fifty acres of land during that year, which fell short of paying up said order. The question arises, was this verbal acceptance sufficient ?

Section 2101 of the Code of 1876, declares that “ no person within this State must be charged as the acceptor of a bill.of exchange, unless his acceptance is in writing, signed by himself or agent.” — See Bands v. Matthews, 27 Ala. 399. But the contract, which is the foundation of the present suit, is not a bill of exchange. A bill of exchange is an order or letter, requesting the payment of money. The present contract is an order, requesting the delivery of cotton. The statute has nothing to do with this case.

In the absence of the statute copied above, an oral acceptance of a bill of exchange would be legal and binding. — See Leading Cases on Bills of Exch. 42, et seq.; Story on Bills, § 242; 1 Pars, on Notes and Bills, 385, and notes ; Edwards on Bills and Notes, 409. And no other mortgage on said land having come to light, the conditional acceptance or promise made by Pritchett became absolute, upon which an action at law might have been maintained by Collins & Co. This, then, rendered Pritchett liable to pay them, before the claim was attempted to be transferred to Auerbach.

But the fact that Pritchett, by accepting Clements’ order, has bound himself to deliver the cotton to Collins & Co., is not necessarily a defense to the claim asserted by Auerbach. It is possible for him to bind himself to pay to each. If a promissory note (or other evidence of debt), is purchased on the faith of a promise by the maker to pay it, he will be compelled at all events to pay the assignee, and is estopped from asserting the invalidity of the note as between himself and the payee, whether on the ground of fraud in the original contract, not known at the time of such promise, or of a subsequent failure of consideration. And the same rule would apply, and for the same reason, if the promissor had previously accepted an order to pay the debt, or any part of it, to another. — See 1 Brick. Dig. 271, § 287. See, also, David v. Shapard, 40 Ala. 587; Traun v. Keifer, 31 Ala. 136; Lowry v. Stewart, 8 Ala. 163.

The testimony in this record shows that Auerbach credited Mrs. Clements one hundred dollars, on the faith of the cotton obligation as collateral security, before he or his agent had any interview with Pritchett in regard to it. In reference to this one hundred dollars, there is no pretence that Pritchett has done anything to estop him from making defense. As to the terms of the interview afterwards had between Brown, the agent of Auerbach, and Pritchett — on the faith of which it is alleged for appellant that he purchased the obligation — Brown and Pritchett, the only persons present, are in direct conflict. Brown derives some confirmation from the testimony of Auerbach, proving an interview, afterwards had between him and Pritchett; and Pritchett was, perhaps, equally confirmed by the testimony of the witnesses, Eagerton and Brail. The onus of proving Pritchett’s agreement to pay the obligation to Auerbach, rested on the latter, and we do not think the testimony preponderates sufficiently in his favor to justify us in finding it as one of the proven facts in this cause. The result is, the complainant must fail on the merits of his case.

Mr. 'and Mrs. Clements, being residents of the State of Florida at the time the former died, Mrs. Clements can claim no exemptions under the statutes of Alabama; and if she asserted any such claim under the statutes of Florida, it was necessary to set it up in the bill, and establish it by proof. But, if this were done, it could not prevail over the transfer of the cotton to Collins & Co., made by Clements in his life time.

Decree of the chancellor affirmed.