First National Bank of Thomasville v. Gobey , 152 Ala. 517 ( 1907 )

TYSON, C. J.-

This action was commenced by attachment against “the Whatley Sawmill Company.” The .affidavit and writ was subsequently amended, so as to make the action against “John R. Gobey, doing business in Clarke County, Alabama under the name and style of Whatley Sawmill.” -This was permissible under Ex parte Nicrosi,, 103 Ala. 104, 15 South. 507.

The complaint filed in the cause followed the amendment, and claimed of the defendant, Gobey, .|550, due by accmnt, for money loaned, and for money paid by plaintiff for defendant at his request, etc. There was an appearance by defendant, and the plea of the general issue was interposed by him to the complaint. Gobey was and is a nonresident of the state, residing in the city of Columbus, in ilie scale of Ohio.

Jt is made to appear by the testimony that one Lindsey got the money from the plaintiff bank upon a draft drawn by him as manager of the “Whatley Sawmill” upon John R. Gobey & Co., of Columbus, Ohio. The tes timóny also tends to show that Lindsey was the general manager of the “Whatley Sawmill,” and that he had drawn similar drafts in favor of divers other persons, upon John R. Gobey or his concern in Columbus, which were paid. It was also open to the jury to find that the money, or some part of the money, that Lindsey got of plaintiff, was used by him in the business conducted by him as managing agent. Such being some of the tendencies of the testimony, whether Lindsey was defendant’s managing agent and authorized to draw the draft and receive the money upon it was a question for the determination of the jury. — 4 Mayfield’s Dig. pp. 525, 526, §§ 74, 81.

The deed from Green to the defendant, conveying the sawmill, plant, should have been admitted in evidence.

Reversed and remanded.

Haralson, Simspson, and Denson, JJ., concur.