Tiller v. Shearer , 20 Ala. 596 ( 1852 )

D ARGAN, C. J.

I think the case of Hullum v. The State Bank, 18 Ala. 805, is conclusive to show that there is no error in the case before us. In that case Hullum put his name on the back of a bill of exchange, that was over due and had been protested, and the testimony tended to show that he had endorsed his name on the bill upon a sufficient consideration, and intended to assume the character and position of an endorser whose liability was fixed. A majority of this court, as it was then organized, held, after all the consideration we were able to bestow upon the question, that inasmuch as Hul-lum had by his contract assumed the position and character of an endorser, whose liability was absolute, the holder of the bill might so treat him in his declaration.

So, in the case before us, the defendant intended to assume the character of a maker of the note, and his contract, by which he assumed that position, is founded on a legal consideration ; and again a majority of the court think that he may be so treated. Indeed, the only written evidence of the contract is his name to the note as a maker; how, then, did he intend to stand in reference to it? The answer must be, as a maker; that was then his contract, that he would be bound as one of the makers of the note, and I can see no injustice nor legal objection in allowing the plaintiff to treat him as a maker. I will not refer to the authorities in support of this position; they will be found in the case of Hullum v. The Bank, supra., and time and reflection have but confirmed me in the opinion I then delivered.

There is, however, another view of this case, which, in my judgment puts the question beyond doubt; there is no plea of non est factum, verified by affidavit; the defendant, therefore, has admitted .by the pleadings that he executed the note as described in the declaration; bis proof, therefore, conld only be received to show a failure of consideration, payment, &c., but not to show that be did not execute tbe note as alleged. But tbe proof, instead of showing a failure of consideration, shows a sufficient legal consideration; tbe contract, therefore, which is declared on, is admitted by the pleading, and the proof shows this contract to have been founded on a sufficient consideration; nothing more can be required to entitle the plaintiff to recover.

Let the judgment be affirmed.