Falls, Howell & Co. v. Thoms

Taliaferro, J. The defendants, engaged in planting in the year 1867, became indebted to the plaintiffs, who were their merchants and factors, in the sum of $1290, as stated in their account. A largo portion of this account is made up of the usual plantation supplies necessary [174] in tlio making of a crop. Some disagreement having arisen between the parties, the plaintiffs, in the month of September of that year, took out .a writ of sequestration, and caused the crop of defendants to.be seized and taken possession of by the sheriff, and prayed judgment for the amount of the account, and that the crop be sold to pay the debt, interest and costs. Tho defendants, released the seizure by entering into bond, and answered by a general denial, and. set up a reconventional demand of $1500 against the plaintiffs, for which they prayed judgment, with interest, etc. This answ.er and reconventional demand was filed-in February, 1868, an'd afterwards, on the eleventh of October of the same year, the defendants again filed their plea in rceonvention.. limiting their demand, however, to $825, with interest specified, and describing their claim to be the amount of a draft drawn by one of the firm of Falls, Allison & Co., in February, 1867, upon and accepted by that firm, payable on tho first of November ensuing, which draft the defendants averred they were the owners of. The firm of Falls, Howell & Co., it seems, were the successors of Falls, Allison & Co., tho plaintiffs., On the eleventh of October, 1869, Charles Pleasants intervened, claiming to bo the owner of the debt for which the defendants were sued, and he prayed- judgment against them as in the original petition, The case was tried before a jury, whose verdict rejected two items .of the account, and found in favor of the plaintiffs for the remainder,, and allowed the defendants their rcconventional demand, founded on the draft. From the judgment predicated upon tho finding of tho jury the plaintiffs appeal. . The plaintiffs reserved two bills of exceptions during the progress of the trial; one to the admission of tho reconventional demand, on the-ground that it was not explicitly set out, and that it came too late. Tho other was to tho refusal of the court to order tho production of a certain letter in tho possession of a witness, concerning the contents of which the witness had been interrogated, and which, as alleged by plaintiffs, wont to show that the draft pleaded in reconvention did not belong to the defendants. We do not see that these exceptions were well taken. The nature of the demand set up-in reconvention was clearly set out, and in time to be passed upon in tho decision of the caso. The witness refused to produce tho letter for the reason that it was a private one, in which, wo think, he was properly sustained by the court. .Besides,- the contents of the letter, as they are represented by the plaintiffs, could have availed them nothing if the letter had been introduced, for the transfer ■of the draft-seems clearly established, by the -express authority of the owner of. the draft to his attorneys to sell it,-and tho testimony of one-of the plaintiffs that he bought it. The solution of this controversy depends solely on questions of fact., [175] the' most material of which, is, had the defendants knowledge of the transfer of plaintiffs’ claim to Pleasants before they acquired the ownership of the draft? The evidence on this point is somewhat confused, but from the whole we are not inclined to adopt the view taken of it by the jury and the judge a quo. The authority given to the defendants’ attorney to sell the draft is contained in a letter written from Shelbyville, Kentucky, on October 9, -18G8. The letter was received on the sixteenth of that month. The defendant says in his testimony that the transfer of the plaintiffs’ claim to Pleasants was first made known to him on the day the reconventional demand was filed, and this is shown to. have been the twelfth of October, 18G8. The letter is introduced to. show the authority to sell. Defendant says that he owned this draft some weeks previous to the time the reconventional demand was filed.. But here is a discrepancy in the facts. The statements of the defendant are at variance'with the dates which he has to roly upon. We think these more to be depended upon than his memory, which may be in, fault, and therefore conclude that he acquired the draft after notice to him of the transfer to Pleasants. It is therefore ordered, adjudged and decreed that the judgment of the district court be so far amended as to reject the defendant’s reconventional demand, founded upon the draft for $825, and the interest claimed upon its amount, and that in all other respects the judgment, be affirmed, the defendant and appellee paying costs of this appeal. Mr. Justice Howell recused.