Planters' & Merchants' Bank v. King, Upson & Cc. , 9 Ala. 279 ( 1846 )

COLLIER, C. J.

It is shown by the evidence demurred to, that the letter of attorney from the defendants to C. C. Langdon, who appears to have indorsed the note in their names, was proved and it is said that “the execution of the note on which the motion was made for judgment,” was also proved. The signature of the makers was not a point put in issue by the pleadings; nor can it with propriety be said, that the motion was submitted on the note. While it would be proper to look to the note to ascertain the nature and extent of the indorser’s liability, the recovery against them was sought upon their indorsement. The plea negatived the indorsement, and we think the reasonable inference is, that the indorsement, instead of the execution of the note, was proved. Taking this to be so, and there can be no question but the evidence made out a case which prima facie entitled the plaintiff to a judgment upon the demurrer, if the act done by the attorney is within the scope of the powers conferred upon him, and the notice of the dishonor of the note was sufficient to charge the indorsers.

The authority conferred in the present case, if not identical with, is not materially variant from, that considered in Knapp v. McBride & Norman, 7 Ala. Rep. 19. We there held, that the attorney was invested with authority to indorse notes on account of his principals; and where a note of which they were ostensibly the legal proprietors, was indorsed by their attorney, in their names, it would be intended, that the authority was not abused or transcended. If the reverse was true, it devolved upon the defendants to establish it by proof. See also, Wallace v. The Branch Bank at Mobile, 1 Ala. Rep. 565.

It does not appear that the defendants resided at the piace to which the notice was addressed to them. Would a jury be warranted in inferring from the recital in the protest that the Notary gave the notice the proper direction? It may be conceded, that they are rarely mistaken as to the residence of the parties to be charged, yet it cannot be predicated of the usual accuracy with which they do business, that they have acted upon proper information in the case at bar. In cases of demurrer to evidence, we have held, that the judgment would not be reversed for a defect of proof which might have been supplied, or the truth' have been shown, if the party demurring had addressed to a witness produced by his adversary, a single inquiry.

The principle on which these decisions rest, is not applicable to the present case. Here no oral testimony was offered', so that the defendant could not have shown, by the examination of the plaintiff’s witnesses, what was the truth in respect to the point we are considering. The protest can only be evidence of what appears on its face — it is so declared by statute; but it cannot prove that which it does not express, and which is not inferrable from its terms.

It would be carrying the doctrine of presumption to its. utmost verge to intend, that the Langdon of the firm of Lea & Langdon was the C. C. Langdon, who indorsed the note-in question as the defendants’ attorney. But if this presump.tion be perfectly legitimate, does it follow that an authority to indorse notes makes one an agent to receive notices of their ■dishonor? We think not. The agencies involve different powers and duties.

There was, then, such a defect of proof that the plaintiff was not entitled to recover. The judgment is consequently .affirmed.