Wimberly v. Windham

COLEMAN, J. The evidence shows that H.T. Wim-' berly was engaged in a general merchandise business and did an advancing business to his customers. W. J. Nicholson became indebted to him, and on this indebtedness delivered a certain number of bales of cotton to M. W. Wimberly, who "managed, collected and conducted” the business for his brother H. T. Wimberly. W. J. Nicholson was also indebted to Geo. W. Scott & Co., for guano, and for this indebtedness executed to them an instrument in writing, containing certain stipulations in regard to his cotton to be raised. Scott & Co., through their agent, set up a claim to or lien upon the cotton delivered to M. W. Wimberly for EL T. Wimberly by Nicholson. There was evidence tending to show that this contention was settled by Scott & Co.’s acceptance of an obligation payable to them signed by W. J. Nicholson and H. T. Wimberly, and which is the foundation of the present action. The defendant H. T. Wimberly filed a sworn plea of non est factum. EL T. Wimberly defended also upon the ground, that his name was signed as a [412] mere surety, to the obligation. It was admitted M. W. Wimberly signed the name of H. T. Wimberly. The following power of attorney executed by H. T. Wimberly to M. W. Wimberly, was introduced in evidence : “Greenville, Ala., Feb. 5th, 1886. “Know all men that I, the undersigned of Loachapoka, Ala., do hereby make, constitute and appoint M. W. Wimberly of Greenville, Ala., my true and lawful attorney, forme, and in my name and stead to carry on a general mercantile business in the city of Greenville, Ala., to do and perform all the necessary acts in the execution and promotion of the aforesaid business and in as full and ample a manner as I might do, if I were personally present.” The power of attorney authorized the agent to make the settlement that was made with Scott & Co. The business was within the scope of his authority. The case is distinguishable from the principles declared in Scarbrough v. Reynolds, 12 Ala. 252 ; Brantly v. So. Life Ins. Co., 53 Ala. 554. Whether his name was signed as principal or surety, he was equally bound by the obligation, but the facts show he was directly interested in and benefitted by the settlement made with Scott & Co. in regard to the cotton , and this settlement was the consideration of the contract sued upon. His relation was not that of a mere surety. — M. & O.R. R. Co. v. Nicholas, 98 Ala. 92. The granting or refusal of an application for a - continuance is discretionary with the trial court, and not revisable on appeal. There is no error in the record. Affirmed.