Clancy v. Hilliard , 39 Ala. 713 ( 1866 )

BYRD, J.

The promissory note set’outin the complaint was not negotiable at common law. The note introduced in evidence, was not only negotiable at common law, but, by section 1525 of the Code is made commercial paper, and is governed by the commercial law. Again, the note declared on is payable generally; while the one introduced in evidence, is payable at a particular place. Such a state of pleading and proof, at common law, would be a variance fatal to the action. — 1 Chitty’s Pleadings, 309; Rocke v. Campbell, 3 Camp. R. 247; Price v. Mitchell, 4 ib. 200; Sanderson v. Bowes, 14 East, 500; Puckett v. King, 2 Ala. 570; Pickens and Wife v. Oliver, 29 Ala. 537.

There are very material distinctions, as to the liabilities of, and the mode of enforcing them against, endorsers of a non-negotiable promissory note, and anégotiable one, as governed by the commercial law. — Story on Prom. Notes, §§ 469 to 479, and notes. Their liability, in the first case, would have to be ascertained and fixed under section 1543 of the Code, and the subsequent sections of that chapter; and in the latter case, by the principles of commercial law; and the two modes of fixing their liability are distinct and variant.

But the counsel for appellee insists, that the provisions of the Code relieve the case from the rule of the common law. Under sections 2227 and 2228, all pleadings are required to be as brief as is consistent with perspicuity and the representation of the facts or matters to be put in issue in an intelligible form, and “that any pleading, which conforms substantially to the schedule of forms attached to this part, is sufficient.” The complaint in this case, perhaps, would be held sufficient against an endorser of such a note as is declared on, but it is not against an endorser upon a note “payable at a bank, or private banking-house.” Such a note must be declared on against the parties thereto as commercial paper, and in substantial conformity to the forms attached to the Code, for such cases, so as to present “ the facts or matters to be put in issue in an intelligible form.” "Where the forms prescribed by the Code are not applicable, then the complaint must state all the “ facts and matters ” necessary to show that the plaintiff, prima facie, is entitled to recover; and the following authorities clearly indicate the proper practice to be observed in framing complaints. — Letondal v. Huguenin, 26 Ala. 552; Pickens v. Oliver, 29 Ala. 528; Sprowl v. Lawrence, 33 Ala. 674; City Council v. Taylor, 33 Ala. 116; Nesbit v. Pearson, 33 Ala. 668; Punch v. Walker, 34 Ala. 494; Alabama Coal Mining Co. v. Brainard, 35 Ala. 476; Adams v. Adams, 26 Ala. 278; Browder v. Gaston, 30 ib. 677. The provisions of chapter 16, title 1, part 3 of the Code, will not aid or cure the defects noticed, on appeal.

It results from this exposition of tbe law, tbat tbe court erred in allowing tbe note to be read in evidence against tbe objection of defendants, and in refusing tbe last charge asked for by them.

If tbe complaint should be amended in tbe court below, in accordance with this opinion, tbe issues will be changed, and tbe evidence introduced will not probably be again offered; and as all tbe other assignments of error, which may hereafter affect tbe case, apply-to tbe admission and exclusion of evidence, we deem it unnecessary to pass on them.

Let tbe judgment be reversed, and tbe cause remanded.