Kitchen & Brother v. Robinson Brothers

Kitchen & Brother v. Robinson Brothers. Action upon a Prommissory Note. 1. Submission of cause to court without jury; review of judgment on appeal. — When a cause is, by agreement of the parties, submitted to the decision of a trial court without a jury, and a special finding of the facts is requested, as provided under the statute, (Code, §'§ 3319-3321), on an appeal from a judgment rendered upon such special finding, the appellate court will not examine into the extrinsic facts, to see whether or not from the evidence introduced the facts were correctly found by the court; but in reviewing such judgment, the .appellate court will be confined to determining whether or not upon the facts found and set forth in the special finding, the trial court rendered the proper judgment. 2. Submission of caihse to court without jury; sufficiency• of judgment on special finding. — Where an action upon a promssory note, containing a waiver of exemptions- and stipulations to deliver to the plaintiff a certain number of bales of cotton, or in the failure to so- deliver the cotton to pay a certain amount per bale, where in a special finding the court recites that the note had been paid, but that the defendant had failed to deliver the certain number of bales of cotton, as agreed upon, and finds that under this the agreement as expressed in the note thei defendant was indebted to- the plaintiffs in a certain sum for failure to deliver such cotton, such special finding is sufficient to sustain a judgment in favor of the plaintiffs for the amount so ascertained, and reciting that as against such amount there was a waiver of exemptions. Appeal from the County Court of Cleburne. Tried before the Hon. T. J. Burton. This was an action brought by the appellees against the appellants. The complaint contained two counts. In the first count the plaintiff sought to recover $419.-64, due on a promissory note, executed by the defendants to the plaintiffs, together with attorney’s fees. In the second count, the plaintiffs claimed of the defendants $48.50 as the amount due by the defendants for failure to ship to the plaintiffs 97 bales of cotton under a contract as contained in the note sued upon. The cause was tried by the court - without the intervention of a jury, and at the request of the defendants there was a special finding made by the court. This special finding was in words and figures as follows: “This cause was submitted to the court and tried without the intervention of a jury and before entering upon the trial the defendants in writing requested the . court to make a special finding of the facts in this case; and after hearing the evidence it was agreed by the attorneys in open court that the court might take this case under advisement, and both parties have leave to present written briefs and arguments. And now upon due consideration the court finds that on the 9th day of March, 1899, the date of the note or contract sued on, the plaintiffs were engaged in the business of cotton commission merchants in the city of Anniston, Alabama, buying, storing, selling cotton, and were engaged in said business prior to and since said date. And that the defendants were at said date, prior to, and since, engaged in the business of retail merchants in ■the town of Heflin, Alabama, and that during the cotton season, buying, selling and shipping cotton at said place. And on the 9th day of March, 1899, plaintiffs loaned the defendants the sum of four hundred dollars in money for which defendants gave their promissory note to plaintiffs payable on the 5th day of October, 1899, for the sum of four hundred nineteen and 54-100 dollars, and to said note and as a part thereof was a stipulation in which the defendants agreed and bound themselves to ship consigned to the plaintiffs one hundred bales of cotton on or before the 1st day of January, 190.0, and from the proceeds of same defendants were to leave in the hands of plaintiffs credit sufficient to pay said note at maturity. A further stipulation therein, that said loan having been extended by plaintiffs for the express purpose of controlling cotton shipments, defendants further agreed therein to pay plaintiffs the sum of 50 cents per bale commission for any number of bales they may from any cause fail of delivery as per above contract. A further stipulation in said note or contract defendants agreed to pay 10 per cent, as attorney’s fees, in case the note Avas not paid at maturity, and was placed in the hands of an attorney for collection, also a clause waiving their exemptions against the collection of said note. That at one time in the month of September, 1899, defendants shipped consigned to the plaintiffs, three bales of cotton under said contract which plaintiff sold and paid or accounted to the defendant for the same less one-eighth of one per cent, per pound, which plaintiffs retained as their commission for handling the same. There Avas no contract or agreement that the plaintiffs Avere to buy defendants’ cotton, nor. for the defendants to sell fco the plaintiffs, but only to ship one hundred hides consigned to them. Nor was there any agreement as to commissions if any, to be retained by plaintiffs for handling defendants’ cotton, only defendants Avere entitled to one month’s storage of their cotton shipped to plaintiffs in their warehous in Anniston, free of charge,.and that soon after defendants shipped the three bales to plaintiffs, defendants proposed and offered to pell plaintiffs twenty-five bales of cotton they then had on hand in Heflin, hut they disagreed on the price and defendants sold same to other parties, receiving one-eighth of one per cent, per pound more than plaintiffs offered or proposed to pay for it, and that defendants failed to ship any more cotton to plaintiffs, under said contract anti failed to ship consigned to plaintiff's, ninety-seven bales of cotton under said contract, further than defendant paid in full the money amount of said note, viz., four hundred, nineteen and 64-100 dollars and the interest thereon, last payment on or about the 5th day of December, 1899, this being before the commencement of this suit; further that during the cotton season of 1899-1.900, defendants handled more than one hundred bales of cotton, after the execution of said contract. “From the foregoing findings, I find the issue in favor of the defendants on the first count in the' complaint, and I find the issue in favor of the plaintiffs on the second count in the complaint and assess their damages at the sum of forty-seven and 50-100 dollars and the interest thereon since the 1st day of January, 1900, total damages fifty-four and 64-100 dollars, for which let judgment be rendered with waiver of exemptions as to defendant J. W. Kitchens, who executed and signed the note and contract.” Upon this special finding the court rendered judgment in favor of the defendants on the first count of the complaint, and in favor of the plaintiffs on the second count of the complaint, and as to the damages assessed on the second count of the complaint, the judgment recited that there had been a waiver of exemptions as to personal property. From this judgment the defendants appeal, and assign the rendition thereof as error. Merrill & Merrill and H. D. McCarty, for appellant, cited 21 Amer. & Eng. Ency. of Law, p. 44; Acker v. Bender, 33 Ala. 234; Drake v. Gorree, 22 Ala. 409; 7 Amer. & Eng. Ency. of Law, pp. 150, 152, 153; LeBron v. Morris, 110 Ala. 122; Gill v. Daily, .105 Ala. 325; Quillman v. Gurley, 85 Ala. 594. Knox, Acker & Blackmon, contra. There was a special finding of the facts by the trial court upon the request of the defendants. It has been held that where this is the case the appellate court can not go behind the facts so found by the trial court, but, on appeal, it must determine whether the court rendered a proper judgment on the facts so found. — Chandler v. Cross-land, 126 Ala. 176; Bibb r. Hall, 101 Ala. “79. The judgment ivas proper. Under the finding the case is brought directly within the principles declared by this court in the cases of Harmon v. Lehman, 85 Ala. 379; Dozier v. Mitchell, 65 Ala. 511; Woolsey v. Jones, 84 Ala. 88; Pollard, v. Baylor, 6 Mung. 433; Cockle v. Flack, 93 U.'S. 344;. Matthews v. Coe, 70 N. Y. 239. [MAJORITY — SHARPE, J.] SHARPE, J. The facts found by the trial court sustain the judgment both as to the right of recovery and the waiver of exemptions therein recited. Authorities tending to sustain this conclusion, in so far as it involves the effect of the contract between the parties and the consequences of the breach ascertained by the special finding to have occurred, may he found cited in the brief for appellee. Section 3321 of the Code, under the. construction placed upon it in Chandler & Jones v. Crossland, 126 Ala. 176, and other cases therein referred to, which construction we hold to be correct, leaves this court without authority to review the special findings of fact, upon the evidence extrinsic of those findings. The first assignment of error not having been insisted on in appellant’s brief is not considered. A ffirmed.