Prout & Robertson v. Webb

McCLELLAN, J. The plaintiff below was a warehouseman and cotton-factor in the city of Demopolis. The defendants were private bankers in said city. The contract declared on was entered into, if at all, by and between them in these respective capacities, and in its very nature depended for its continued existence upon the continuation, on either hand, of the business engaged in at the time by Webb and Prout & Robertson, respectively. Either party might have continued to engage in the business, with respect to which the contract was made, for any number of years; and on the other hand, either party might have desisted from the business within a year from the date of the contract. A discontinuance by either party, within the year, would have determined the contract. The undertaking, therefore, belongs to that class of “agreements to continue to do something for an indefinite period, which may be determined by such a change in the circumstances of the parties as will make it unreasonable or unnecessary that they should be further bound, the contingency of such change in circumstances being implied in the nature of the contract,” and which “are not within that provision of the statute of frauds which requires all contracts, which by their terms are not to be performed [600] within one year, to be in writing.” — Browne on Stat. of Frauds, 276a; 1 Reed, Stat. of Frauds, 199; Wood, Stat. of Frauds, 485; Talmadge v. R. & S. R. R. Co., 13 Barb. 493; Adams v. Adams, 26 Ala. 279; Brigham & Co. v. Carlisle, 78 Ala. 244; Heflin v. Milton, 69 Ala. 356; Derrick v. Brown, 66 Ala. 165. And it is immaterial in such oases, so far as the application of the statute of frauds is concerned, whether the contract has or has not been performed within the year. Browne on Stat. of Frauds, 279. This contract was made in November, 1885, or 1886. It was not restricted in its application to cotton bought by any particular buyer or buyers, but was intended to embrace all cotton stored in appellee’s warehouse, which should be bought by persons dealing with and through the appellants as to the particular purchase. Bernard & Go. did not begin operations as cotton-buyers at Demopolis, until the fall of 1887. It would, therefore, be a presumption too violent to be indulged, that the agreement of Prout & Bobertson was made in the interest of, or for the benefit of Bernard & Go., or other cotton-buyer. On the contrary, the agreement was to obtain with respect to all buyers who dealt with Prout & Bobertson, and whose purchases passed through their hands. From these dealings certain profits resulted to the appellants, consisting of the interest on money which they advanced, and of the exchange which they charged on the collection of drafts for the proceeds of the cotton when sold. To facilitate Prout & Bobertson in the dealings in which they were thus interested, and out of which these profits were made, Webb surrendered his lien on the cotton, in consideration of their promise to secure him in the payment of his charges. The “leading purpose” of Prout & Bobertson, therefore, was not to answer for the debt, default, or miscarriage of Bernard & Go., but to subserve their own pecuniary or business interests. The contract by which this object was accomplished, was supported by considerations moving directly between the parties to it, and with which Bernard & Go. had no concern, which were of benefit to the promisor, as well as of detriment to the promisee; and although it may be in form an undertaking to answer for the debt of another, and although, as a matter of fact, when performed, it may have that effect, it is not within the third clause of the statute of frauds, and need not have been in writing.—Wilson v. Boynton, 3 Met. (Mass.) 396; Emerson v. Slater, 22 How. 28; Castling v. Aubert, 2 East, 325; Small v. Shœfer, 24 Md. 161; Leiber [601] v. Levy, 3 Met. (Ky.) 292; Westmoreland v. Porter, 75 Ala. 459; Browne Stat. Frauds, 214b-249, and note; 1 Reed Stat. Frauds, 72. The same conclusion would probably be reached upon other considerations presented by the evidence in this case; as, ‘for instance, that appellants, through this arrangement, obtained possession and control of the property, through the bills of lading, which, in the course of these dealings, were deposited with them. — Authorities- above cited; and Williams v. Leper, 3 Burr. 188; McCrary v. Madden, 1 McCord L. 486. But we are content to rest it on the position first taken. The demurrers to the first count of the complaint were sustained, and leave granted plaintiff to amend. This was done by adding the third and fourth counts. Whereupon the defendants again demurred to the first, which was no longer in the complaint, and also to the third and fourth; and they now assign the overruling of their demurrer to that count as error. This is so palpably a mistake, that it need not be further considered. The third and fourth counts are for the breach of the special- contract, and seek to recover the amount of money which the defendants, it is alleged, agreed in that contract to pay to the plaintiff. They do not proceed on the theory, that a breach of duty imposed by the contract has been committed, whereby and in consequence of which plaintiff has been damaged in the sum claimed, but they seek to hold the defendants to' the payment of the money that they obligated themselves to pay. The case made by these counts is, therefore, ex contractu, as upon an express agreement. The case made by the second count, for money had and - received, is also ex contractu, as upon an implied promise; and these several counts are, therefore, properly joined.— Whilden v. M. & P. Bank, 64 Ala. 27. The amended complaint on the special contract, and each count thereof, avers that the plaintiff was induced to forego his lien on the property, and to surrender his possession of it, by the agreement of the defendants to see that his charges were paid; and the demurrer to the third and fourth counts, on the assumption that they show a voluntary surrender of the property, or abandonment of the lien, under which plaintiff had possession of it, are not well taken. The rulings of the court below, so far as they were prejudicial to the defendants, were in accordance with the principles we have an [602] nounced, and were free from error. Its rulings wbicb went to the prejudice of the plaintiff, and are, by agreement of parties, brought to our attention by a cross-assignment of error, need not be considered; since, in the view we have taken of this case, they involve no injury to the appellee. Affirmed.