Gulf City Boiler Works Co. v. Falligant

Alabama Court of Appeals

Gulf City Boiler Works Co. v. Falligant

60 So. 510, 6 Ala. App. 178, 1912 Ala. App. LEXIS 52

Alabama Court of Appeals·Decided November 12, 1912·Published

Opinion

WALKER, P. J.

The claim of the appellee was based upon an alleged assignment to it by one Buchanan, who was an employee of the appellant, of all sums of money due and to become due to Buchanan for services performed and to be performed by him for the appellant during six months next after the date of the assignment. The only count of the complaint upon which the case went to the jury specifically alleged that said Buchanan made the assignment “in good faith and for a valuable consideration,” and the plaintiff took issue on a pleao which set up that said assignment was not made in good faith. So the question of Buchanan’s good faith in making the assignment was distinctly made an issue in the case.

The evidence was to the effect that no notice of the assignment was given to the appellant until after it had been served with a writ of garnishment issued in a suit brought against Buchanan by a third party, though the assignment purported to have been executed [182] some time before the writ of garnishment was issued. Both the assignor and assignee testified to the effect that the assignment was executed on the day of its date; but there was evidence as to the conduct of each of them in reference to it which had some tendency to impair the credibility of this testimony, and to support an inference that, so far at least as the assignor was concerned, the assignment was not made in good faith, but was a device resorted to for the purpose of defeating the writ of garnishment. Under the pleadings and evidence in the case the defendant was entitled to the instructions embodied in written charges 4 and 5 requested by it, and the court erred in refusing to give those charges.

The demurrer to plea 8 should not have been sustained, as it failed to state distinctly the grounds of objection to which the plea may have been subject.— Code, § 5340. Whether this ruling involved injury to the appellant need not be decided, as the judgment appealed from must be reversed on another ground.

Reversed and remanded.

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WALKER, P. J.

The claim of the appellee was based upon an alleged assignment to it by one Buchanan, who was an employee of the appellant, of all sums of money due and to become due to Buchanan for services performed and to be performed by him for the appellant during six months next after the date of the assignment. The only count of the complaint upon which the case went to the jury specifically alleged that said Buchanan made the assignment “in good faith and for a valuable consideration,” and the plaintiff took issue on a pleao which set up that said assignment was not made in good faith. So the question of Buchanan’s good faith in making the assignment was distinctly made an issue in the case.

The evidence was to the effect that no notice of the assignment was given to the appellant until after it had been served with a writ of garnishment issued in a suit brought against Buchanan by a third party, though the assignment purported to have been executed [182] some time before the writ of garnishment was issued. Both the assignor and assignee testified to the effect that the assignment was executed on the day of its date; but there was evidence as to the conduct of each of them in reference to it which had some tendency to impair the credibility of this testimony, and to support an inference that, so far at least as the assignor was concerned, the assignment was not made in good faith, but was a device resorted to for the purpose of defeating the writ of garnishment. Under the pleadings and evidence in the case the defendant was entitled to the instructions embodied in written charges 4 and 5 requested by it, and the court erred in refusing to give those charges.

The demurrer to plea 8 should not have been sustained, as it failed to state distinctly the grounds of objection to which the plea may have been subject.— Code, § 5340. Whether this ruling involved injury to the appellant need not be decided, as the judgment appealed from must be reversed on another ground.

Reversed and remanded.

Gulf City Boiler Works Co. v. Falligant, 60 So. 510, 6 Ala. App. 178, 1912 Ala. App. LEXIS 52 (Ala. Ct. App. 1912).

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