Sterrett v. Miles & Co. , 87 Ala. 472 ( 1888 )

SOMERVILLE, J.

The written order given by Gabert & Ratliff, bearing date March 19th, 1887, directing the appellant, Sterrett, to pay certain preferred creditors ont of the claims placed in his hands for collection, including the judgment against Mrs. Bustin in favor of the drawers of the said order, did not operate to transfer or assign the judgment, or the fund, to either Sterrett, or the creditors. No words of transfer or assignment are used in the instrument, and no present yaluable consideration is shown to have moved from the drawee, or said creditors, to the makers of the order. Nor does it appear that the drawee either accepted the order, or entered into any promise or arrangement with the creditors, by which he would be prejudiced by the revocation of the order. The ownership of the judgment, or fund, was therefore unchanged, and it could be reached by an attaching or garnishing creditor. The cases of Clark v. Cilley, 36 Ala. 652; Coleman v. Hatcher, 77 Ala. 217, and Thweat v. McCullough, 84 Ala. 517; s. c., 5 Amer. St. Rep. 391, are conclusive of the question raised, and require an affirmance of the judgment.

The testimony of the witness Johnston tended to change the legal effect of the order, so as to make it operate as an assignment of the judgment to Sterrett, in trust for the creditors named; and being in parol, was properly excluded.

The judgment must be affirmed.