Garrett v. Holloway , 24 Ala. 376 ( 1854 )

GOLDTHWAITE, J.

The note sued on was payable to J. Renneau, or order, and the endorsement was in these words: £By written power of attorney, dated 12th of April, 1850, I, transfer, in the name of J. Renneau, the within note to Messrs. Holloway & Malone, 80th July, 1850.

(Signed.) Edward Stiff.”

The recital in the endorsement is, in substance, that the transfer was made in the name of the payee, and by his attorney, and is sufficient to show clearly that it was intended as the act of the principal (Grubbs v. Wiley, 9 S. & M. 29); and when that is the case, it must be held as his act, especially when it is not required to be done under seal. — City of Detroit v. Jackson, 1 Doug. Mich. Rep. 106.

There was no error in rejecting the witness, Stiff, under the circumstances. He was the principal in the note, and was offered by the defendants, who were his sureties, without offering to release him. —Richards v. Griffin, 5 Ala. 196; Bondurant v. The State Bank, 7 ib. 830.

In relation to the first charge requested, the court committed no error in refusing it. But one witness appears from the record to have testified anything in relation to the consideration; and he states, that he understood from some of the parties, at the time of its execution, that it was made to enable the principal, Stiff, to purchase some printing materials, or to be used for his benefit; and there is no evidence whatever that tended to bring home knowledge of the consideration to the plaintiffs below. The charge, as requested, being based in part upon facts of which there was no evidence, was abstract.

The second charge might properly have been refused for the same reason. The opinion or belief of the plaintiff, that he should be able to obtain the note at one half, was no evidence that he paid but that amount for it; and in the absence of testimony tending to establish that fact, the charge was abstract.

W7e see no error in the record, and the judgment is affirmed.