Bickley, McClure & Co. v. Porter

MAYFIELD, J. This is a claim instituted by appellees. Appellants claimed the property as execution creditors of B. C. Bynum Mercantile Company; and appellees claimed the property as a committee of three, appointed by the execution debtor and a majority of his creditors, averring that they, as such committee, took possession of the property to administer it for the benefit of all thé defendant’s creditors, including appellants. (1) There is no dispute that appellants were judgment and execution creditors of the defendant in execution, nor that the goods levied upon belonged to the defendant and' were subject to the execution, unless the appellants Avere bound by an agreement among the creditors and the defendant in execution whereby the appellees were to take the property of the defendant and administer it in accordance with certain stipulations. If the appellants are bound by that agreement, then in equity and good conscience they ought not to take the property from the committee and subject it exclusively to their judgment; equitable defense, under our statute, being availing in this kind of action.— Code, § 6039. There is no dispute that an agreement was made between the debtor and his creditors by which the appel [610] lees were appointed as a committee; that the property was delivered by the debtor to this committee, and that they were administering it for the purpose of paying the debts of the debtor; nor that the appellants had notice of the agreement. But there is a dispute as to whether or not the appellants agreed to the arrangement or were bound, or intended to be bound, thereby. In fact, this is the only real dispute, and on this issue the result of the claim suit depended. (2) It is first insisted that there was a variance, in that the claimants claimed the property as individuals, and the proof showed that their title was held in their respective capacity, as a committee of the creditors. There is nothing in this point. The claimants made no claim, except in the capacity of a committee for the creditors; and if there was anything in the point, the question was not raised as required by rule 34, Circuit Court Practice (175 Ala. XXI). (3) It. is contended by appellants that this case falls within the rule announced in the case of Henry v. Murphy, 54 Ala. 246, 253, to the effect that any private or secret agreement between an embarrassed debtor and one or a part only of his creditors, whereby there is a composition of the debts, is void as to the other creditors not so agreeing. Such, however, is not the case before us; there was no composition with a part only of the creditors, Avhereby it Avas intended to bind others. The debtor was not really insolvent; it Avas merely unable to convert its property into money' with Avhich to pay all in full; and the disputed question of fact, as we have before said, was whether appellants Avere parties to the agreement and bound by it. (4) Appellants contend that while they kneAV of the agreement, and their attorney Avas present at some of [611] the meetings to originate or perfect the plan, it was agreed and understood that the appellants reserved the right to reduce their claim to judgment, that they did so, and thereby acquired a lien by virtue of the statute as to the registration of judgments, which lien was paramount and superior to the rights of the debtor, of the committee, or of the other creditors. If the appellants had this agreement and understanding that .they should so reduce their claim to judgment, it does not necessarily follow that they were not otherwise bound by the agreement. It would still be a question of fact for the jury, under all the evidence, whether they could or should enforce that judgment by selling the property which was turned over to the committee under the agreement. (5) There was no error in permitting proof by the committee as to payments made to appellants, after the agreement, and as to whether they were made in pursuance of the agreement, or contrary thereto. This would tend to show whether or not the appellants were parties to the agreement of the defendant with the creditors, and to sustain the right of the committee to hold the property for the purposes so agreed upon. (6) There was no error in allowing Mr. Fitts, attorney for the debtor, to testify as to conversations had between himself and Mr. Smith, who was acting as attorney for some of the creditors, appellants here. These conversations related to the agreement between the debtor and its creditors, and tended to shoAV whether or not appellants Avere parties to the agreement, and if so, to what extent they were bound thereby. (7) Charge 7 was calculated to mislead the jury, and Avas therefore properly refused. The appellants ■ were not entitled to the affirmative charge, and hence the other charges requested by them [612] were properly refused; all of them being in effect affirmative charges for the plaintiffs. Affirmed. Anderson, C. J., and Somerville, and Ti-iomas, JJ., concur.