The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1906-12-23
MONEY LENDING CASE
WILL BE APPEALED
Attorney for Winkler Brokerage Com
pany Makes Statement, Giving
Plaintiffs Side.

In the case of the Max j Winkler Brok-
erage company against Il. E. Darby,
which was tried in the circuit court Fri
day, and in which the court gave the
general affirmative charge in favor of the
defendant, NJ NJ. Ullman, attorney for
the plaintiff, contends that the report of
the case appearing in The Age-Herald
of Saturday was likely to do the COM
pany serious injury.
Mr.. Ullman made the following state
ment of his side of the case:
"The suit in this case was commenced
in March, 1906, before the inferior court
of Birmingham, upon the following COM
plant:
MAX j. Winkler Brokerage company
VS.. r. Z. Darby.
1.-THE plaintiff claims of the defendant
the sum of $50, for that heretofore, to-
wit on the oath day of November, 1905,
the defendant executed an instrument in
writing wherein and whereby the said
defendant purported to sell and, assign
to the plaintiff for a rected consideration
of $50. his salary earned and to be earned
for the months of November and Deem
Der, 1905, while employed by the ST. Louis
am San Francisco Railroad company.
and plaintiff AYERS that in said con-
tract the defendant represented that he
was employed regularly by said company.
And the plaintiff further AYERS. that
in said instrument, above referred to,
the said defendant represented that there
were no judgments, garnishments, liens,
attachments, transfers of. or orders
against his salary. and that his present
Indebtedness did not exceed the sum
of $40
And the plaintiff AYERS that the said
representation in said contract so made
by the defendant, that there were no
transfers against his salary was know
ingly false. and made by the defendant for
the purpose of inducing the plaintiff to
pay him its money upon said contract,
and relying upon the truth of said repre-
sentation, the plaintiff paid to said de-
PENDANT the sum of to-wit, $72. whereby
the plaintiff was defrauded, and lost the
said sum Of money and the interest there
on, hence this suit"
Mr.. Ullman says:
Upon the filing of this suit in the
inferior court. a trial was had before the
bankruptcy court as to whether or not the
suit ought to be enjoned. After the hear
ing of the evidence, Referee Tribe dis
missed the petition of Darby to enioin
the suit, and permitted the plaintiff to
proceed in the state court Darby having
filed his petition In bankruptcy in jan
uary, scheduling $548 of debts. Thereupon,
the case was tried before Judge Benners.
who. upon all the evidence on behalf Of
the plaintiff and the defendant, held that
the plaintiff Wnkler Brokerage company,
was entitled to a judgment.
DARBY thereupon appealed the case
"The contention of the plaintiff was
that granting for the sake of argument
that the local money lenders act applied
to this transaction. still that act only
provides that the contract is void unless
recorded, and unless the rate of interest
is expressed. The suit in this case, not
being on the contract nor to enforce the
contract but to recover damages re-
sulting from the alleged fraud practiced
by the defendant In obtaining the money
and inducing the WinlSer Brokerage COM
pany to make the contract, therefore, the
plaintiff might recover.
1.-THE court charged the jury that, even
though they believed from the evidence,
that the $72 was obtained by fraudu-
lent representation, and that thereby
Winker was defrauded, still the jury
must bring in verdict in favor of the
defendant.
immediately after the verdict of the
jury was returned and read, the plain
tiff filed an appeal bond In order to carry
the case to the supreme court of Ala
bama.
'The court made no finding. as stated
in Saturdays Age-Herald, that it is
misdemeanor to fail to record the paper
out of which this suit arose, as there
was no such question in anyway involved
In this litigation"