Hunt v. Johnson, Parke & Co. , 96 Ala. 130 ( 1892 )

McCLELLAN, J.

This action was instituted in the City Court of Selma. The act creating that court provides that suits commenced therein “shall be tried by the court, without the intervention of a jury, unless a jury be demanded by the plaintiff at the commencement of the suit, or by the defendant at the time of filing his plea or demurrer, by endorsing such demand in writing on the summons and complaint, plea or demurrer.” — Acts of 1875-6 p. p. 586, 590. No endorsement of a demand for a jury, was made on the summons and complaint, or on the demurrer to the complaint, which was filed June 3, 1891. By thus pretermit-ting the demand which the statute prescribes, both parties effectually waived a trial by jury, and the defendant can not complain of the court’s action in refusing his demand for a jury made after his right thereto had been forever lost.

This action is prosecuted by Johnson, Parke & Co., against William H. Hunt on the latter’s acceptance of a draft drawn on him by Bowles & Gerald in favor of the plaintiffs. The paper is described in the complaint according to its tenor but is not set out in hace verba therein. It was manifestly no defense to the cause óf action thus stated that “-he engagement or debt sued on, was a promise to assume for the debt, default or miscarriage of another,” which is the matter of defense set up in defendant’s sixth plea. The plea was bad in that it failed to aver further that the contract sued on was not evidenced by a writing signed by the defendant and expressing the consideration for the promise to answer for the alleged debt, default or miscarriage of another. The demurrer to it was properly sustained.

It is not necessary to support a contract that its consideration should move from the promisee to the promisor in the sense of defendant’s ninth plea.' The consideration is none the less sufficient if it move from a third party to the promisee, as in the case at bar, where the consideration for Hunt’s obligation to plaintiffs was the payment of the former’s indebtedness to Bowles & Gerald, and as is always the case where the liability arises on an acceptance not merely for accommodation.

The unconditional acceptor of a bill of exchange, like the maker of a promissory note, is the primary debtor and is not entitled to presentation or demand for payment before suit brought. His obligation to pay is absolute and in no sense dependent upon a demand therefor at maturity; and of consequence it is no defense to him that no presentment at maturity is made, or that the only presentation or demand for payment before suit was made by a party to whom the paper had not been endorsed. — 1 Dan. Neg. Inst., § § 641 et seq.; 2 Amer. & Eng. Encyc. of Law, p. 899. Pleas 11, 13 and 14, which rely upon the failure of plaintiffs to present the bill sued ’ on for payment at maturity, were therefore bad.

The matter alleged in the twelfth, plea is no defense to this action. The claim there advanced as a setoff against the debt laid in the complaint sounds in damages merely, could not be recovered in an action of debt or assumpsit and, hence, can not be pleaded as a setoff against such action. The court did not err in sustaining a demurrer to this plea. — 3 Brick. Dig., p. 738, §§ 1 et seq; Nelms v. Hill. 85 Ala. 583.

On the cross-examination of one of the plaintiffs as a witness in their behalf, the defendant was allowed against plaintiff’s objection to ask this question: “Was there or not any consideration for Hunt’s accepting this draft other than the consideration of the account owed Johnson, Parke & Oo. by Bowles & Gerald?” To this the witness replied : “None.” If there was any error in allowing plaintiffs on rebuttal to ask this witness what he understood by the word “consideration” in the interrogatory quoted above, it could not possibly have involved injury to the defendant, since the answer was : “I thought by that word that Hunt was to receive nothing for what he did for Johnson, Parke & Go.,” which tended directly to support the defense of want of consideration; and for this reason, probably, the objection to the question was not followed up by a motion to exclude the answer.

The case being tried mainly on the issue whether defendant’s acceptance was conditional upon the doing of certain work for him by the drawers, it was manifestly competent as tending to negative such condition for the plaintiff to sbow tbat on the day the draft matured the defendant ashed for an extension of time on it on the ground that he did not have the funds to meet it then, and that in this conversation with one of the plaintiffs, “he did not say anything about not owing the draft, or about any conditions or qualifications as to its payment,” but “only spoke about extending it.” The testimony of the witness Gerald tended in like manner to negative the idea that the draft was accepted conditionally and also to show that there was a valuable consideration moving from Bowles & Gerald to defendant for his acceptance of this draft. • This testimony was properly admitted.

The conversation between Patterson, a stranger to the ' cause, and the defendant, to which the latter sought to testify, was inadmissible. Neither of the plaintiffs was present or heard what was said. What -was said could not have had any reference to any act then being or about to be done by the defendant in connection with .the matters involved in this suit. What then passed could have been nothing more than the uncommunicated declarations of the defendant ' made in his own interest under circumstances which did not bring them within the res gestee of any relevant act or transaction, or the declarations of a mere stranger. The rights of the plaintiffs could in no wise have been affected by a ' consideration of these declarations, and they were well excluded as being wholly immaterial and irrelevant.

A motion for a new trial was made, but upon what ; grounds, or how supported, we are not advised. Of course, therefore, we can not-say that the court erred in overruling it.

It affirmatively appears that the bill of exceptions does not contain all the evidence which was adduced on the trial. We can noi therefore review the court’s finding and judgment on the facts. — Hood v. Pioneer Mining and Manufacturing Co., 95 Ala. 461.

The issue on the eighth plea was a false one, but having been made up the court was bound to try upon it. That . plea was baa in that it alleged a parol contemporaneous agreement to the effect that the acceptor was not to be liable unless Bowles & Gerald should complete certain work for him. We mention this here lest it might be supposed that we considered that a sufficient plea.

There is no error in the record; and the judgment of the City Court is affirmed.