Max J. Winkler Brokerage Co. v. Darby

MAYFIELD, J. This action was brought by the appellant against the appellee; the substance of the complaint being that the plaintiff was induced to purchase the salary earned by the defendant, as an employe of the St. Louis & San Francisco Railroad Company, for the months of November and December, 1905, by false and fraudulent representations made by the defendant to the effect that there were “no judgments, garnishments, liens, attachments^ transfers of, or orders against his salary, and that his present indebtedness did not exceed the sum of $40; that, relying upon said representations, plaintiff paid $72 for the assignment of •said salary; and that by reason of said false and fraud [225] ulent representations, plaintiff lost the money which it paid for said assignment of said salary. The testimony- of the ¡plaintiff is that it- is not a money broker, or one who lends money, but that its business is that of “buying salaries or workingmen’s wages;” that it did not lend any money to the defendant, but bought liis salary. The written transfer was introduced in evidence, showing a sale of the salary. The defendant did not introduce any testimony to controvert that of the plaintiff. On this state of facts, the act of March 9, 1901, “to regulate the business of money brokers, and persons who lend money for themselves or others, on bill of sales, notes or mortgages on personal property, or-their personal security,” in certain counties (Acts 1901, p. 2685), has no application to this case. It results that the court erred in giving the general affirmative charge in favor of the defendant; but, on the contrary, the plaintiff would have been entitled to the general affirmative charge, if it had been asked. Consequently it is unnecessary to notice assignments of error as to pleadings. The judgment of the court is reversed, and the cause remanedd. This opinion was prepared by Justice Haralson, and is now adopted by the court. Reversed and remanded. Dowdell, C. J., and Simpson and McClellan, JJ., concur.