[Goldsmith & Davis v. McCafferty.] Davis sold to McCafferty "1 bale Havana tobacco, 118 lbs. at $1.10-$129.80, and one. case leaf tobacco, 350 lbs, 30 cents, $105," on four months time. On August 4th, 1890, the evidence tends to show, McCafferty delivered separate notes for the two items of the account, that for $129.80 being the price of the bale of Havana bearing date as of June 1st, and that for $105, being the price of the case of leaf tobacco, bearing date as of July 1st. Each note was payable four months after date. Before these notes were executed a controversy arose between the parties as to the condition and quality of the case of leaf tobacco. McCafferty claimed that this tobacco was unsound, and, finally-he now says after the notes had been delivered-that it had been re-sweated, whereas it had been represented and sold to him as "natural sweet leaf," and that it was not worth more than twenty cents per pound. He brought forward and insisted upon these claims by letters to the sellers; but on July 21st, before the notes were delivered, he wrote that he would keep it, if Goldsmith & Davis would give him a longer time than four months in which to pay for it. There is evidence, in the fact that the note for this item was made payable four months from July 1st, instead of from May 13th, the date of the bill, or June 1st, the date of the other note, tending to show that this proposition was accepted and the extension granted. On the other hand, in respect of the bale of Havana tobacco, the other item in the account, the amount of which was $129.80, for which a separate note was given, there is no evidence that any controversy ever arose between the parties. All that is said in the correspondence, or any where in the evidence, having reference to this item is found in McCafferty's letter of October 13th. He there says: "The Havana has lost its aroma, and is but very little better than any good domestic filler." This letter was written five months after the sale and delivery, and it can not be construed into a claim that the tobacco was not as represented at the time of the sale; but only that during the intervening time it has lost its aroma; and this fact appears to have been thrown out merely for the purpose of conducing to a more favorable consideration of the buyer's claims as to the leaf tobacco. No extension of time for payment of this item is asked, and that none was granted is apparent from the date of the note, which is as of the [Goldsmith & Davis v. McCafferty.] first day of the month succeeding that toward the end of which the goods were received, and even the failure to date the note on the precise day of the receipt of the goods is explained in McCafferty's letter of July 29th, where he says: "I have dated note for Havana from June 1st, as that was the arrangement made with Mr. G.," and this arrangement with Mr. G. was clearly a matter of convenience of dates and not of any real extension of time, since it is not reasonable to suppose that McCafferty having, as he claimed, a serious grievance against the sellers which he proposed to abandon for an extension of time of payment would have been content with the very few days intervening between the arrival of the shipment and the first of June. On the foregoing and other considerations shown by the bill of exceptions (which the reporter will set out in full) is based our conclusion that in point of fact no question has ever been made as to McCafferty's liability for the full amount of the note for $129.80, representing the price of the Havana tobacco, and no claim was ever made that that tobacco, the sale and purchase of which was segregated from that of the leaf tobacco, and constituted a separate transaction in legal effect by McCafferty himself, was unsound, or was re-sweated or was worth only twenty cents per pound, and no extension of time for payment therefor was ever asked or granted. The present action is upon this note for $129.80, evidencing McCafferty's indebtedness for the bale of Havana tobacco, the price of which as we have seen, was $1.10 per pound. The note for $105, for the case of leaf tobacco at 30 cents per pound, is no more involved here than if the transaction out of which it arose had never transpired. The trial court, however, instructed the jury, at defendant's request, as follows: "Even though the jury may believe the defendant asked for and obtained an extension of time of the indebtedness sued on, this does not prevent him setting up a failure of consideration in the debt sued on, if the defendant was not aware, at the time he gave the note, that the tobacco was re-sweated, and it was in fact re-sweated." And the jury returned at verdict for the plaintiff's for the value of the Havana tobacco, which they found to be twenty cents instead of one dollar and ten cents per pound. It is clear that this charge was entirely abstract, in that there was no evi [Anniston Carriage Works et al. v. Ward et al.] dence that any extension of time was asked or granted in respect of the Havana tobacco, or that it was resweated, and this tobacco alone constituting the consideration of the note sued on, there was, it follows, no evidence of a failure of consideration. It is clear also to us that the jury were misled by this instruction to the conclusion that the evidence as to resweating, extension of time and failure of consideration had reference to the Havana tobacco and the note sued on, when in truth its relation was entirely to the case of leaf tobacco and the note for $105, which is not sued on, since their verdict is wholly inexplicable upon any other hypothesis. It is very rarely the case that the giving of an abstract charge requires the reversal of a judgment. But where the charge is abstract and misleading, and it is, as here, manifest that the jury has been misled by it to the prejudice of the appellant, the law is well settled, that the consequent judgment should be reversed.-Bernstein v. Humes, 71 Ala. 260; Herring v. Skaggs, 73 Ala 446; Beck v. State, 80 Ala. 1; State v. Vance, 80 Ala. 356; Goldsmith v. State, 86 Ala. 55; 5 So. Rep. 480; Schaungut's Admr. v. Udell & Crunden, 93 Ala. 302, 9 So. Rep. 550. For this error, into which the lower court was probably led by a request for an instruction on the same subject and likewise abstract by the plaintiffs, the judgment must be reversed. The cause is remanded. Reversed and remanded. 101 670 103 555 101 670 108 86 110 538 Anniston Carriage Works et al. v. Bill in Equity to have a Mortgage declared a General As- 1. Mortgage to secure pre-existing debt a general assignment.-Where an insolvent debtor mortgages all of his property to secure a pre-existing debt, and this mortgage is satisfied prior to its maturity by the sale of part of the goods and the procurement of money by the mortgagor from another person by a second mortgage conveying the same property, the first mortgage is declared to be a general assignment for the benefit of the debtor's creditors, (Code, § 1737), and the [Anniston Carriage Works et al. v. Ward et al.] money received by the first mortgagee, in satisfaction of his mortgage, is a trust fund in his hands, subject to the claims of the mortgagee's creditors. 2. Bill to have mortgage declared a general assignment; second mortgagee not a necessary party.-Where a bill is filed to have a mortgage executed by an insolvent debtor to secure a pre-existing debt declared a general assignment, the second mortgagee, from whom the debtor obtained money to satisfy the mortgage executed to the first mortgagee, is not a necessary party. APPEAL from the City Court of Anniston. R. D. Ward & Co., and other creditors of the Anniston Carriage Works, on the 28th day of January, 1892, filed their bill in the city court of Anniston, seeking to have a mortgage executed by the Anniston Carriage Works to the Anniston Loan & Trust Co. declared a general assignment, for the benefit of all creditors of said Anniston Carriage Works. It is alleged that on the 2d day of November, 1891, the Anniston Carriage Works executed a mortgage conveying to the Anniston Loan & Trust Co. substantially all of its property, to secure a pre-existing debt. The mortgage was due sixty days. after date, and matured on the 1st day of January, 1892. The prayer of the bill is that the mortgage be declared a general assignment for the benefit of all the creditors, and that the Anniston Loan & Trust Co. be held to account to the creditors for the value of the stock of buggies, carriages and merchandise, alleged to be of the value of eleven thousand dollars, for the benefit of the general creditors. The respondents, the Anniston Carriage Works and the Anniston Loan & Trust Co., answered the bill, and alleged that the Anniston Carriage Works was indebted to the Anniston Loan & Trust Co. in the sum of about five thousand dollars, for advances made by said Anniston Loan & Trust Co., which was doing a banking business, in paying drafts drawn by said Anniston Carriage Works, and overdrafts made by the latter, the aggregate of which amounted to over five thousand dollars, and for which it negotiated a loan with said bank, due sixty days after date, and executed a mortgage to secure the same upon its stock of buggies, carriages and other merchandise, consisting substantially of all its property. Prior to the maturity of this debt, and on the 3d day of [Anniston Carriage Works et al. v. Ward et al.] December, 1891, the Anniston Carriage Works paid the debt in full, and the mortgage was satisfied, and the Anniston Loan & Trust Company, which had temporarily assumed possession of the mortgaged property, restored the same to the mortgagor, and the mortgage was cancelled and satisfied. Afterwards, and before the filing of the bill in this cause, the Anniston Carriage Works executed a new mortgage upon the same property to one William Noble to secure a loan which it obtained from said William Noble, contemporaneously with the making of said mortgage, and subsequently made a bill of sale to William Noble in extinguishment of this mortgage. Both respondents pleaded that William Noble is a proper and necessary party respondent to the bill; and the Anniston Carriage Works filed a separate plea setting up the invalidity of the mortgage, because it had not been authorized by a stockholder's meeting, nor had thirty days notice of any meeting for that purpose been given to the stockholders, or any of them. Each of the respondents filed demurrers for the non-joinder of other creditors of the Anniston Carriage Works as co-complainants. On the final submission of the cause, the court below overruled the demurrer and plea, and rendered a decree granting the relief prayed for by complainants. Respondents appeal, and assign this decree as error. KNOX, BOWIE & PELHAM and J. J. WILLETT, for appellants. When the indebtedness of the Anniston Carriage Works to the Anniston Loan & Trust Company was paid, the claim on the Loan & Trust Company was extinguished; and by accepting its payment the latter company violated no obligation which it owed to other creditors of the Anniston Carriage Works, nor did it incur any liability to them. It could not refuse to accept payment of the mortgage indebtedness. It held only a conditional conveyance of the property, by the very terms of which it was stipulated that the mortgage should be void if paid at maturity. It would be contrary to all rules of equity to hold the bank liable as a trustee in invitum for doing what the mortgage contract bound it to do and what the Carriage Works could compel it to do.-Benediet, Hall & Co. v. Renfro Bros., 75 Ala. 121; Murray v. McNeely, 86 Ala. 234; 5 So. Rep. 565; Rankin v. Vandiver, 78 Ala. 562; Stephens v. Regenstein, 89 Ala. 561; 8 |