Blount County Bank v. Brice , 209 Ala. 670 ( 1923 )

The trial was had on the common counts and count 3. Defendant pleaded in short by consent the general issue, with leave to give in evidence any matter which, if well pleaded, "would be admissible in defense of the action, to have effect as if so pleaded; and with leave to the plaintiff to give in evidence any matter, which, if well pleaded, would be admissible in reply to such defensive matter," etc. There was refusal of the general affirmative charge requested by defendant, and the judgment was for plaintiff.

It is insisted by appellant that the bank had no authority under its charter to act under a power of attorney as attorney in fact. It is unnecessary to consider this phase of the argument. The testimony is without conflict that the money was paid by the insurance company to Mr. Shelton and his attorney in fact, Mr. Fendley, and was not paid to or received by the bank as such attorney in fact. Though the funds were deposited in said bank to the credit of the attorney in fact for said Shelton, this did not make the corporation the custodian of the fund as Shelton's attorney in fact. The plaintiff testified that he did not know whether the bank, as such, received the funds. The cashier testified that all the insurance checks for Shelton were deposited to the credit of "A. A. Fendley, Attorney in Fact for W. J. Shelton"; that the Blount County Bank "never received those checks or the proceeds of them to its own credit"; that the money was checked out by A. A. Fendley as attorney in fact for W. J. Shelton. That from time to time corporations have acted in such agency, as the holders of an escrow, in the acceptance of special deposits, etc., is illustrated by the decisions. Jones v. First National Bank,206 Ala. 203, 89 So. 437; First National Bank v. Prickett (Ala.App.) 95 So. 920.

The power of a principal to revoke at pleasure the authority conferred under a general power of attorney is not affected, even if the power of attorney be expressed in writing and declared "to be exclusive or irrevocable," unless it be coupled with an interest, or a time limit, as comes within the exceptions to the general rule. Cooper v. Cooper, 206 Ala. 519,91 So. 82. See, also, Wheeler v. McGuire, Scoggins Co.,86 Ala. 398, 5 So. 190, 2 L.R.A. 808; Chambers v. Seay,73 Ala. 372; Owensboro Wagon Co. v. Hall, 143 Ala. 177, 42 So. 113; Evans v. Fearne, Crenshaw Co., 16 Ala. 689, 50 Am. Dec. 197. The testimony is without conflict that the insurance money was paid to W. J. Shelton and A. A. Fendley; the checks being payable to the parties and indorsed by them. Notwithstanding the error of the court in declining to permit defendant to show Shelton's oral instructions to Fendley at the time of such indorsements, as to the disbursement or disposition of that fund, it was thereafter shown, without conflict, that Mr. Brice's claim was discussed by them, and that Shelton instructed Fendley that he did not "owe Brice anything" and that he should not pay him anything. Thereafter the checks from the insurance company for the twenty odd thousand dollars, so indorsed by Shelton, were turned over to Fendley, and he was instructed "at that time what to do with them." The fact that Fendley thereafter made the special deposit in the bank (sought in the first instance to be created the attorney in fact) to his account as attorney in fact for Shelton, in no way gave plaintiff (mortgagee) a right in such fund or share therein to authorize this suit.

It was decided in McKenzie v. Stewart, 196 Ala. 241,72 So. 109, that —

"A parol agreement by a mortgagee to accept payment of the mortgage debt in other than money is held not an agreement with respect to a conveyance in land, and is not within the statute of frauds; that this is true though the result of the mortgagee's acceptance of the property agreed to be accepted in payment would be a release of the land from the mortgage; * * * 'the same result would follow from his acceptance of money also; and in either case the release of the land results incidentally from the operation of law, and not from any agreement of the parties.' "

See Lehman, Durr Co. v. Marshall, 47 Ala. 362; Formby v. Williams, 203 Ala. 14, 81 So. 682; Abbeville Live Stock Co. v. Walden, ante, p. 315, 96 So. 237.

The question whether or not a legal liability exists between Shelton and Brice on the unpaid notes, evidenced and secured by the mortgage from Shelton to Brice, or such liability between Bridges and Brice, or Bridges and Shelton, is beside the issue. The power of revocation existing in Shelton as to the application of the proceeds of his insurance policy by the Blount County Bank, his right to deliver the money to Fendley and direct him not to pay Brice's claim (and that he did not), is without dispute.

It results from the foregoing that there was error in the refusal of the trial court to admit in evidence the instructions of Shelton to Fendley, at the time of the indorsements and delivery of the checks for the insurance, as to the application of the proceeds. This error was cured by the subsequent admission of evidence that Shelton did instruct Fendley to apply the proceeds from the insurance checks to the payment of his creditors, other than Brice; and that this instruction was given before the money was deposited in the Blount County Bank to the credit of Fendley as attorney in fact for W. J. Shelton. The affirmative charge should have been given, as requested by the defendant, on this uncontradicted evidence.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.