On Motion for Rehearing.
[2] The contract whereby appellant leased land to Coleman was in writing. It contained a stipulation that the note sued upon was “to be paid out of the first cotton gathered and sold from said above-rented place.” It appearing that the ten bales of cotton mentioned in the opinion as having been grown on appellant’s land was all the cotton Coleman grew thereon, it is contended in the motion that the effect of the stipulation referred to, as between appellant and Coleman and persons, having notice thereof, was to assign to appellant the proceeds of the sale of said ten bales of cotton. The contention should, we think, he overruled.
“An agreement to pay a debt out of, a certain fund will not operate as an equitable assignment of the whole or any part of such fund, such an agreement being' a mere promise.” 4 Cyc. p. 47; 2 A. & E. Enc. Law, p. 1008.
As appellant did not own the proceeds of the sale, nor an interest in same, it follows that the further contention made in the motion, that appellee bank became liable as for a conversion of said proceeds when it permitted Coleman to apply same as stated in the opinion, should be overruled, notwithstanding it appeared that, at the time it permitted Coleman to so apply same, it knew that ten bales of the cotton were grown by Coleman on said premises, and further knew that the note sued upon was then unpaid in the hands of the Planters’ National Bank.
As appellant did not own the proceeds of the sale of the cotton, her right, if she had a right, to recover against appellee bank, as she sought to, must have been based on the fact that she had a lien on the cotton, and that said bank had, in legal contemplation, converted it. What the bank did, as shown by the testimony was to hold the warehouseman’s receipts for “safe-keeping” on Coleman’s account until he sold the cotton, and then, as directed by him, to deliver the receipts to Scott Bros., and collect from them, and credit his account with, the price they had agreed to pay Coleman for the cotton. In doing that, even if a lien existed on the cotton in appellant’s favor, the bank violated no legal duty it owed to appellant. It had no right to refuse to deliver to Scott Bros., when directed to do so by Coleman, the tickets it held for him merely for “safe-keeping,” and it had a lawful right when authorized by Coleman to do so to receive the purchase price of the cotton of Scott Bros, on his account. Had it after so receiving the money paid it into Coleman’s hands instead of placing it to his credit on its books, it would not, we think, thereby have incurred liability to appellant. Eor the proceeds of the sale of the cotton belonged to Coleman, and appellee bank was bound on his demand therefor to deliver same to him. Had he demanded the money and had appellee bank paid it into his hands, it would have done appellant no legal wrong had it afterwards accepted it of Coleman in payment of the debt he owed it. If this is true, then certainly the fact that it did not pay same into Coleman’s hands, but instead, in compliance with his direction, deposited it to the credit of his account and afterwards permitted him to apply it as stated in the opinion, did not render it liable to appellant as for a conversion.
We have examined the authorities noted in the motion, and do not understand any of them to be in conflict with the view we have taken of the case.
The motion is overruled.