Nesbitt v. Pearson's Adm'rs , 33 Ala. 668 ( 1859 )

STONE, J.—There

was no error in admitting the note in evidence under the complaint. The second, or amended count, describes it accurately; and the concluding sentence, “and said money mentioned in said note, with interest thereon, is now due to plaintiff,” is a sufficient averment of ownership under the Code, § 2129.—Letondal v. Huguenin, 26 Ala. 552; Code, p. 552.

[2.] Neither is there anything in the argument based on the condition in the face of the note, in the words following : “ The above sum may be discharged with two hundred and eighty dollars in merchantable bar-iron, at five cents per pound, to be delivered at Kossuth forge.” Such conditions are inserted for the benefit of the maker ; and when he neglects to avail himself of them, they cease to have any binding effect on the holder. They are but a privilege, which the promisor forfeits by failing to avail himself of, before or at maturity. At any timé after maturity, a note thus framed becomes an absolute promise to pay money; and a complaint, which so describes it, conforms to its legal effect, and is sufficient.—Plowman v. Riddle, 7 Ala. 775; McRae v. Raser, 9 Porter, 122; Love v. Simmons, 10 Ala. 113.

[3.] It was not necessary for plaintiff to prove his ownership of the noie, in the absence of a sworn plea denying that fact.—Rule of practice adopted at January term, 1853; rule book, p. 3 ; 28 Ala. viii.

[4.] We are not able to perceive any ground on which to hold that the witness Newton Smith was incompetent to testify for plaintiff. The verdict and judgment in this case could not be evidence for Smith in another suit.— Code, § 2302.

[5.] The affirmative charge given may be obnoxious to criticism. It is somewhat obscure, and its tendency may have been to mislead the jury. Still, as an abstract legal proposition, we can not say it affirmed anything prejudicial to the rights of the appellant. The bill of exceptions does not assume to set out all the evidence; and we are not at liberty to- presume the existence of evidence, as the basis of a reversal: on the contrary, it is our duty to presume there was evidence to justify the charge. See Partridge v. Forsyth, 29 Ala. 200; Doe ex dem. v. Goodwin, 30 Ala. 242.

Under strict rules, it may be that the agreement, bearing date January 2, 1852, is but an offer by Watson to sell, and not a contract until accepted by Nesbitt.—See Falls v. Gaither, 9 Por. 605; Addison on Contr. 24; Chitty on Contracts, 9 ; Findley v. Bank, 6 Ala. 244.

We find nothing in this .charge on which to reverse. The charge asked was properly refused, for reasons stated above.

There is no error in tbe record prejudicial to the appellant, and the judgment is affirmed.