Lee v. Wimberly , 102 Ala. 539 ( 1893 )

HEAD, J.

It was the plaintiff’s purpose to sue and obtain judgment against Jas. A. Perdue, Robert S. Lee, J. G. Bozeman and Robert A. Lee, as partners under the name of Greenville Hotel Contractors & Builders, for material sold them by a partnership called the Green-ville Brick & Building Company, to be, and actually, used in the construction of an hotel in Greenville, which they had contracted to build for a corporation, known as Greenville Hotel & Improvement Co. — the plaintiff claiming to be the transferee of the claim — and to establish and enforce a material-man’s lien on the building for the joayment of such judgment; but the pleader made the mistake of declaring against all the parties, both the contractors and owner of the building, as joint purchasers of, and debtors for, the material sold, thereby creating a fatal variance between the allegations and the proof. The contractors who bought the goods were the only debtors. The owner of the building was under no personal liability to the material-men. Its only liability consisted in the charge or lien upon its building, and upon any unpaid balance it owed the contractors, which, under the law, might be created and established for the security of the price of the material furnished. The law permits and requires, in order to bind him, that the owner be made a party defendant to the suit, but he must be brought in upon appropriate allegations showing his true relation to the subject matter. It can not be properly alleged that he was a joint purchaser of the goods, with the contractors, who were, in fact, the only purchasers. In the first count of the complaint this mistake appears in express terms. The second count does not, in express words, declare who the purchasers were, or who the owner of the building, but construing the pleading most strongly against the pleader, the legal effect of the count is that the goods were sold to all the defendants. The recital, as shown by the count, in the declaration of a lien alleged to have been filed in the office of the judge of probate, that the Greenville Hotel & Improvement Company was owner of the building, and the Greenville Contractors & Builders, the contractors therefor, is not an allegation that such was the fact, or which relieves the complaint of the vice pointed out. The result is, that the plaintiff could not lawfully recover because of the variance. The rulings of the court on this feature of the case were erroneous.

Another defect fatal to a recovery, as the case is now presented, is the allegation that the defendant, Robert A. Lee, was a joint debtor with the others, when all the evidence shows, without conflict, that he was not such. He was the mere clerk or secretary of the contractors, employed by them to perform certain services, for a stipulated compensation : and this relation was expressly disclosed in written transactions had by him for his principals with the sellers of the goods, one of which was the very contract itself for the sale and purchase of the goods in question. Besides, it is shown, without dispute, thatMcGeh.ee, one of the sellers, actually knew, when the goods were sold, that Lee was not a member of the partnership. The evidence discloses no act of his which did not appertain to his office of secretary, or from which it could be said he was misleading the public by holding himself out as a partner ; and if he had. done such an act, the plaintiff could take nothing thereby, because the sellers did not act on it, knowing, as they did, that he was only ah employé. The fact that his compensation was to be measured by the profits of the enterprise, if any, did not constitute him a partner.' The nature of the contract shows beyond question there was no intention to constitute him a member of the partnership, — Tayloe v. Bush, 75 Ala. 432. There w^as nothing upon this question to submit to the jury, and the errors of the court, in this regard, will be apparent from what we have said. That these variances are fatal to a recovery, we refer to Walker v. Dock & Ins. Co., 31 Ala. 529; Jones v. Englehardt, 78 Ala. 505; Jackson v. Bush, 81 Ala. 396. The case of Walker v. Dock & Ins. Co., supra, construes section 2609 of the Code of 1886. We can not assent to the views and conclusion of the court on this point in Bibb v. Allen, 149 U. S. 481.

The alleged transfer of the claim in suit to the plaintiff was denied by sworn plea, under the rule. This put upon plaintiff the burden of proving that he was the party really interested in the demand. The defendants insist that there is no evidence tending to show such a transfer, prior to the bringing of this suit. The record leaves this question not free from difficulty. The claim was contracted at sundry times from July 22, 1891, to November 18, 1891. The Brick & Building Co., sellers, at first consisted of Wm. M. McGehee, Bartow Wimberly and J. A. Owens. Owens, after the account began, sold his interest in the firm to Bartow Wimberly. Bartow Wimberly died in August or September, 1891. Thereafter, McGehee and the widow of Bartow Wimberly carried on a like business, under the same firm name. What portions of the claim in suit was contracted before the death of Wimberly and what after, do not appear. Nor does it appear that the firm, prior to his death, bound itself to furnish any specified quantity of material (brick). They did engage to furnish so many brick, at specified prices; but the contract, which was in writing, went further and stipulated that it was to hold good only so long as sellers’ brick were accepted. Hence, it was not binding on buyers, and, therefore, did not bind sellers, for the want of mutuality. The death of Wimberly dissolved the partnership, which, of course, terminated the •possibility of further sales on the partnership account. The business subsequently carried on by McGehee and the widow, involved the creation of a new partnership between them, as distinct from the old as if formed of entirely different individuals, and conducted under a different name; and the sales they thereafter made were just as distinct from those made by the old firm. They bore no relation to, or connection with, each other. The old account vested exclusively in McGehee, as surviving partner, for the purpose of liquidation and settlement of the partnership business. As surviving partner, he had authority to transfer it for the payment or security of a partnership liability. So, also, as a member of the new firm, he was authorized to transfer its account, for any legitimate purpose of that partnership. But, if he transferred both, the transferee could only take them as, what they were, distinct, independent claims ; and in an action by him to enforce them, he should declare on them as such. He can-not properly treat them as a single demand, and sue upon them as such ; though both may be joined in the same action. It is not essential to the transfer of a contract, express or implied, for the payment of money, passing the beneficial interest therein to the transferee, so as to authorize him, under the statute, to sue thereon in'his own name, that it be made in writing. It may be made in anyway which shows a clear intention to assign; and either by words or acts. — 5 Lawson’s Rights and Remedies, § 2655; Planters &c. Ins. Co. v. Tunstall, 72 Ala. 142. There must appear not only conduct on the part of the assignor evincing an intention to assign, but there must be an acceptance of the assignment, by the assignee, in order to its completion. — 72 Ala. 142, supra. The authorities seem to hold that an order given by the creditor to the debtor to pay the sum due to a third person, is revocable by the creditor, at any time before the payment or acceptance by the debtor, and, until then, does not operate as an assignment of the claim. — 5 Lawson’s Rights and Rem., § 2656; Coleman v. Hatcher, 77 Ala. 217; Sterrett v. Miles, 87 Ala. 472. It is very clear, also, that if such order is not delivered to the payee therein, or any one by him authorized to-receive it, and is not accepted by the debtor, there is no argument to support the proposition that an assignment was thereby effected.

These are some general principles applicable to the evidence in this case. The plaintiff’s evidence, offered in support of the alleged transfer, shows that, in what was done, both claims — that in favor of the old partnership, and in favor of the new — were treated as one. They are declared on as one. No information is given of the amount of either, separately. Hence, confusion and trouble. Was there a valid transfer of either, or both as one, before suit brought? The evidence on this subject consists in the testimony of W. M. McGehee, supplemented. by certain acts touching the perfection of a material-man’s lien, which will be noted for whatever influence they may exert. His testimony is as follows : On direct examination, “that he transferred this claim, the subject of this suit, to H. T. Wimberly, and that thereafter he had a settlement with R. A. Lee, as secretary of the Contractors & Builders, as to the amount due the Brick & Building Company for brick; that the amount so ascertained to be due was $496.63, with interest thereon since November 18th, 1891, after all the credits were given.” Again, he says further on,: ‘ ‘That since he delivered the transfer of this claim to the plaintiff he had demanded payment from the Builders & Contractors for these brick ; that the claim was transferred to plaintiff when the brick was sold to the contractors.” (It will be remembered the brick were sold at different times from' July to November 18th.) The following cross examination of the witness occurred : ‘ ‘Did, you have a conversation with R. A. Lee to-day? Yes, sir. Didn’t you tell him in that conversation that you had never transferred this claim to H. T. Wimberly? I told him that I hadn’t transferred it in writing. You never transferred it in writing? No, sir. Did the time of transferring this cause of action to H. T. Wimberly occur before or after the death of Bartow Wimberly? Afterwards. Did you sign the name of the Brick & Building Company, or did you sign your name and Mrs. Wimberly, as surviving partners of the Brick & Building Co. to the transfer? > I signed my name as secretary. Did you or did you not? I done it one of the two ways. Secretary of what? Of the surviving partners. Did Mrs. Wimberly ever appoint you as secretary of the surviving partners of the Brick & Building Co? No, Sir. Then you simply signed your name to it? As secretary. What was you secretary of? We were surviving partners on the death of Mr. Wimberly. Mrs. Wimberly never made me secretary. Have you ever seen H. T. Wimberly with regard to this transfer? No, sir. Did H. T. Wimberly ever accept this transfer from you in payment of, or as collateral for, any amount the Brick & Building Co. owed him? No. Didn’t you tell R. A. Lee that Mack Wimberly, as agent for plaintiff, refused to accept this account sued on as a credit until it was paid ? I did at one time. When was. that? Sometime ago. Has not it been since this suit was brought? I don’t think it was. Don’t you know it was ? I told him that at one time. I don’t recollect when. Do you tell this jury that before this suit was begun and before this lien was filed that plaintiff, Wimberly, accepted this $496, that the Brick & Building Co. owed to H. T. Wimberly? No, sir. When did he accept it as a payment on the $496, since this suit was brought or before? Since this suit was brought. It was the day we adjusted the claim. Did he give you credit for $496? Yes, sir. Did he give it before this suit was brought? No, sir. Was it since this suit was brought? Yes. Haven’t you been to Mr. Lee several times since this suit was brought to try to get him to adjust this matter, and try to get him to pay it to you? Yes. And didn’t you tell him when you were trying to get him to pay it that if he didn’t pay it to H. T. Wimberly that the Brick & Building Co. would still be owing Wimberly? I did. I have told Lee that. Since March? When the lien was filed? Yes, sir. Did you hire the lawyers to bring this suit and not H. T. Wimberly? Yes, sir. Did H. T. Wimberly authorize you to hire lawyers to bring this suit on his claim you had transferred to him? No, sir. If you fail in this suit, wont you still be indebted to H. T. Wimberly for the $496? I will. Was there any agreement that he (plaintiff) would take this claim and discharge you? No, sir.” Further on, the bill of exceptions contains this recital: ‘ ‘The witness McGehee further testified, that the only way that the claim in suit was ever transferred to plaintiff was that he made out the account due for brick and stated the amount of brick delivered by the Brick & Building Co., and then wrote at the bottom of the account an order to the contractors to pay H. T. Wimberly all this amount, less $100, and sent the order to R. A. Lee by a drayman or somebody. That Lee never said anything about receiving the order.” The evidence further shows, that on February 8, 1892, C. E. Hamilton served the Green-ville Hotel & Improvement Co. with a copy of a notice, with the name of “H. T. Wimberly, per O. E. Hamilton, atty.,” subscribed thereto, notifying that company of the purpose of the “undersigned” to file a lien on the hotel building for this demand, and stating therein, “Whereas, said Brick & Building Company transferred said claims for said brick furnished. ” Immediately following this notice there is copied in the transcript, without a remark or statement in reference to it, a notice to the president of the Plotel Company that the Brick & Building Co. would file a lien on the hotel building for amount due the latter company for the brick furnished from July 22,1891, to February 1, 1892. No reference is made to any transfer of the claim. It is signed "Greenville Brick & Building Co., per C. E. Plamilton, atty.” On the same day. February 8, 1892, C. E. Hamilton served on the Hotel Company a notice (leaving the amount of the claim blank) that the Greenville Brick & Building Co. would rely upon their lien on the building. On the 4th March, 1892, C. E. Hamilton filed in the probate court a declaration of a lien on the building, for this account, in favor of plaintiff. It is subscribed “H. T. Wimberly,” and sworn to by M. W. Wimberly. It recites that the claim was transfered to H. T. Wimberly by said Greenville Brick & Building Co. On the same day (March 4th,) Hamilton also filed a declaration of lien on the building, in favor of the Brick & Building Company. It is subscribed, “Greenville B. & Building Co. by W. M. Mc-Gehee, ” and is sworn to by McGehee. Hamilton testified that McGehee swore to both these liens in his presence , and as per his advice as an attorney ; but in this it appears he was mistaken, as the plaintiff’s declaration was sworn to by M. W. Wimberly, It is indicated in McGehee’s testimony that he employed Hamilton to file what he termed “his” lien, which we take to be the lien above mentioned, in favor of the B. & B. Company. It is nowhere intimated by what authority Hamilton did any of the other acts by him done, or by what authority M. W. Wimberly acted in swearing to the plaintiff’s declaration. Nor does it appear that Hamilton was then a practicing attorney at law. R. A. Lee testified for defendants that no drayman or other person ever delivered to him any order from McGehee or the Brick & Building Co. to pay the demand or any part thereof to plaintiff, and that he never heard of the alleged transfer to plaintiff until this suit was brought. The foregoing comprises substantially all the record shows touching the alleged transfer. It presents much contradiction and inconsistency. Upon due consideration we are of opinion that we can not properly pronounce upon its legal effect. We have stated the general principles of law, in which the jury should be instructed, and will leave that body to solve the question, in the light of those principles, whether there was a valid transfer of the claims in question, or either of them, to the plaintiff, before this suit was brought, either in payment or as collateral security of a debt owing the plaintiff, so consummated as to pass the beneficial interest in the demand to the plaintiff. We deem this the better course, also, in .view of the fact that the judgment must be reversed for other causes, and that the case will probably be tried again on different pleadings, and upon a mox*e definite and consistent presentation of the facts.

The vex-dict and judgment were in favor of the defendants upon the issue in respect of the lien sought to be established. We, therefore, do not notice the assignments of error on that subject.

The record fails to show any ruling of the court on the demurrers to the complaint. We can not consider them. The judge’s bench xiote copied by the clexxk, in the transcript, is no part of the record. It can not be considered.

If tlie pleadings and evidence had j ustified the enforcement of a material man’s lien on the building, no qxxestion of set-off in favor of the owner could have properly axfisen. Being a party defendant only for the purpose of protecting its property in the building, it could interpose no set-off against the plaintiff’s demand.

The jxxdgment obtained by the contractors against the owner, which was transferred to R. A. Lee, had no relevancy to any issue in the cause, except to show that there existed an upaid balance due by the owner to the contractor's upon which the plaintiff was seeking to fasten a lien, as well as to aid in establishing a lien on the building. In such cases, we think such an adjudication between the contractor and owner competent evidence. And it would not be competent for the defendants to prove that there were other lien holders. All such liens stand on an equal footing. If the owner’s liability is insufficient to cover all; they must be paid pro rata, but that adjustment can not be had in a suit to establish the lien. — Code, § 3040.

What we have said will serve as a sufficient guide on another trial, without further noticing, in detail, the several exceptions reserved.

Reversed and remanded.