Ala. Coal Mining Co. v. Brainard , 35 Ala. 476 ( 1860 )

A. J. WALKER, C. J.

A bill of exchange may be drawn upon a person, natural or artificial, by a name different from the proper name of such person, and may be accepted by a name variant from the proper name of the acceptor. — Edwards on Bills, 251, 91. The bill of exchange in this case is alleged to have been drawn upon the defendant, by the name and style of “ Steamer G. W. Dorrance and owners,” and to have been accepted by the defendant, in and by the name and style of “ St’r Nor-ranee, per Q-. M. McConico.” The bill of exchange given in evidence corresponds, in the name and style of its address and acceptance, with the description alleged; and, if drawn upon the defendant, and by it accepted as alleged, was admissible in evidence.

[2.] The onus of proving the acceptance was upon the plaintiff, by virtue of a well known common-law principle, unless a different rule is established by our statutory law. The provision of the Code (§ 2279) is, that “all written instruments, purporting to be signed by the defendant, his partner, agent, or attorney in fact, must be received in evidence, without proof of the execution, unless the execution thereof is denied by plea, verified by affidavit.” If we look alone to the words of this statute, we might understand" it as dispensing, in the absence of a sworn plea of non est factum, with proof of the execution of such instruments only as upon their face purport to be executed “ by the defendant, his partner, agent, or attorney in fact.” But it must be construed in reference to other provisions of the Code, and in reference to the purpose and object which must have been had in view in the adoption of it. If it applies only to those instruments which upon their .face purport to be executed by the defendant, his partner, agent, or attorney in fact, it might not include instruments which were the foundation of actions against executors or administrators, and instruments executed by a feme sole, upon which she was sued after her name was changed by marriage; yet the form of a plea of non est factum, given on page 556 of the Code, shows that it includes the former ease ; and it would be most unreasonable, if it did not include the latter.

Section 2279 must be construed in reference to sections 2280 and 2288 of the Code. Section 2280, in general terms, dispenses with proof of the execution of any instrument offered in evidence under the plea of set-off, or other plea in bar, unless the plaintiff put the execution of such instrument in issue by a replication, verified by affidavit. This section does not confine its operation to instruments which purport to be executed by the plaintiff. The terms of this section are so like those of the old law, (Clay’s Digest, 340, § 152,) that it must receive the same construction which seems to have been given to that law, in Lazarus v. Shearer, (2 Ala. 718,) and McWhorter v. Lewis, (4 Ala. 198;) and must be regarded as including instruments averred to have been executed by the plaintiff, but which do not upon their faces purport to have been so executed. It follows, that if section 2279 of the Code includes only those instruments which in their terms purport to have been executed by the defendant, his partner, agent, or attorney in fact, a defendant who brings forward an instrument against the plaintiff by way of defense would, in many cases, stand in a more favorable position than that in which he could stand, if as plaintiff he had brought suit upon the same instrument.

Section 2238, which must be construed in pari materia with section 2279, evidently contemplates that every plea which denies the execution by the defendant, his partner, agent, or attorney in fact, of an instrument which is the foundation of the action, shall be sworn to. It is a fair inference, that the rule of pleading here prescribed is co-extensive with the rule of evidence prescribed in section 2279; and that in the cases in which the plea of non est factum is, by section 2238, required to be sworn to, proof of execution is dispensed with by section 2279. We think the language of section 2279 of the Code susceptible of a construction, that would make it applicable to instruments which, according to the purport of the complaint, were signed by the defendant, his partner, agent, or attorney in fact; and that construction we are induced by the reasoning above set forth to adopt.

[3.] The bill of exchange in this case was drawn in favor of, and payable to W. B. Seawell & Co. The phrase, “ & Co.,” affixed to the name “ W. B. Seawell,” is primafacie evidence that the bill of exchange was drawn in favor of, and payable to a partnership, of which W. B. Seawell was a member. It was competent for one of the partners, if the partnership was subsisting, to endorse the bill; but the legal title of the partnership could only be transferred by an endorsement in the name of tbe partnership. — Story on Bills, § 197; Story on Part. § 602 ; Chitty on Bills, 56, 57, 225; Collyer on Part. §§ 401, 402, 474; Knapp v. McBride & Norman, 7 Ala. 19; Lang’s Heirs v. Waring, 17 Ala. 145. It is certain, therefore, that the endorsement of Seawell alone would not have the effect of transferring to the plaintiff’s immediate endorser a legal title to the bill of exchange ; and if it were necessary for the plaintiff to rely upon a legal title in this action, there could be no recovery. But, notwithstanding the endorsement by one of the partners, in his name alone, would not carry to the endorsee the legal title of the partnership ; yet each partner has the complete jus disponencli of its dioses in action and other personalty, and the transfer by one partner of the bill of the partnership must convey the entire equitable right of the partnership, unless it is assailed upon some adequate ground. 3 Kent’s Com. m. pp. 44, 45; P. & M. Bank of Mobile v. Willis & Co., 5 Ala. 770.

[4.] By virtue of such an equitable title, the plaintiff might maintain an action in his own name, under section 2129 of the Code. The clause of that section which does not apply to bills of exchange, or instruments payable in bank, or at a private banking-house, is that which subjects the party suing upon a contract, to any defense which the payor, obligor, or debtor, may have had against the payee, obligee, or ci’editor, previous to notice of the assignment or transfer.

[5.] But in this case, the first count of the complaint is upon an endorsement; and to allow a recovery upon an equitable title, would be violative of the principle, that the allegata and probata must correspond. The charge of the court was, therefore, erroneous. The first count of the complaint does not contain an allegation appropriate to a recovery upon the equitable title. — Nesbitt v. Pearson, 33 Ala. 668. If the bill could have been admitted in evidence under the common counts at all, it could only have been after proof of its execution. — May & Bell v. Miller & Co., 27 Ala. 515.

Judgment reversed, and cause remanded.