Noble v. Walker , 32 Ala. 456 ( 1858 )

STONE, J.

There is, perhaps, not proof enough in-this record, to establish the proposition that the exhibits numbered five and ten were made for the accommodation of Mr. "Walker. They were drawn on the Montgomery Manufacturing Company, by Mr. Staples, its secretary; and their discount was procured by Mr. Walker, the last-endorser. These transactions, on their face, have the stamp of a bona-fide debt; and as the manufacturing company was then receiving lumber from Mrs. Walker’s mill, we feel it our duty to presume, unless the evidence overturns that presumption, that they were given in liquidation of the debt for lumber.

The only testimony relied on to overturn this presumption is that of Mr. Staples. It is insufficient for the purpose. True, he testifies that the company has paid for all the lumber obtained. He does not, however, testify that there wras no debt when these bills were drawn; nor does he state when the company paid for the lumber. All he states is perfectly consistent with the hypothesis, that these bills were designed to represent a real debt from the company to Mrs. Walker.

These, with all the other bills purchased by the Messrs. Noble from. Mi*. Walker, were bought at a discount greater than eight per cent, per annum. The question arises, what, in such case, is the measure of recovery by the purchaser against his immediate endorser?

This direct question was considered and settled in Hutchins v. McCann, 7 Porter, 94. It was there said to be “ a principle of law, too well settled to be questioned, that in an action by the assignee agiust the assignor, the maker having failed to pay, the proper measure of damages is the sum of money which constitutes the consideration of the assignment, with interest.” — See, also, French v. Grindle, 15 Maine, 163, and numerous authorities there cited; Lane v. Stewart, 20 Maine, 98; May v. Campbell, 7 Humph. 450; and other authorities on the brief of appellee; Hunt v. Acre, 28 Ala. 580, 597; Reese v. Walton, 4 B. Monroe, 510.

This principle vindicates the decree of the chancellor, so far as these two bills are concerned.

All the other bills were drawn by Walker himself on the manufacturing company, and were accepted and endorsed by the officers of that company. These were accommodation paper, and the fact that they were presented for discount, and the money received by Mr. Walker, was notice of their character to the Messrs. Noble, if indeed notice was necessary. — Mauldin v. Branch Bank, 2 Ala. 502-13; Wallace v. Branch Bank, 1 Ala. R. 565; Carlisle v. Hill, 16 Ala. 398, 405; Saltmarsh v. P. & M. Bank, 14 Ala. 668, 679.

In this case, it will be borne in mind that Mrs. Walker files her bill to obtain relief against usurious interest. In such case, relief is granted only on payment of principal and lawful interest. If the Nobles were the actors, a different rule would prevail. — See authorities collected ia Hunt v. Acre, 28 Ala. 580.

The decree of the chancellor is affirmed.