Bank of Guntersville v. Jones Cotton Co.

DOWDELL, J. There can be no doubt that the instrument sued on is governed by the commercial law.— Anderson & Co. v. Jones, 102 Ala. 537, 14 South. 871, and authorities cited in that case. The facts in. this case are essentially different from the facts in the case of Haas & Co. v. Citizens’ Bank of Dyersburg, 144 Ala. 562, 39 South. 129, 1 L. R. A. (N. S.) 242, 113 Am. St, Rep, 61, relied on by appellee. There was no retention of title to the property by the vendor in the case before us. The bank discounting the draft sued on was in no sense the.vendor of the bale of cotton forming the consideration of the draft drawn by M. T. Swift on the defendant in favor of the payee, Gibson. When Swift bought the bale of cotton from Gibson, and instructed liim to ship it to the Jones Cotton Company, the delivery [529] of the cotton' to the common carrier by Gibson, consigned to the Jones Cotton Company in pursuance of Swift’s instructions, divested the title out of Gibson. The indorsement by Gibson of the draft, with bill of lading attached, did not operate to put the legal title to the bale of cotton in the plaintiff; nor did it, as said above, constitute the plaintiff the vendor of the cotton. The plaintiff became the owner of the draft before its maturity, in the ordinary course of business, and consequently the drawee and acceptor cannot be heard to set up the defense of failure or want of consideration. The case was tried by the court below without the intervention of a jury, and upon an agreed statement of facts. The court is authorized, by an act regulating the practice, etc., in the circuit court of Morgan county (Acts 1894-95, p. 586), to review the conclusion and judgment of the lower court in such cases on the evidence, without any presumptions in favor of the rulings of the lower court, and in case of error to render such judgment here as the lower court should have rendered. From what we have said above as to the law of the case, it follows that on the agreed statement of facts the judgment appealed from must be reversed, and one will he here rendered in favor of the plaintiff. Reversed and rendered. Tyson, C. J., and Simpson and McClellan, JJ., consnr.