Montgomery & Eufaula R. R. v. Trebles , 44 Ala. 255 ( 1870 )

B. F. SAFFOLD, J.

The bill of exceptions does not state that the appellant excepted to the overruling of his demurrer to the complaint because there were no averments of Seale’s authority to indorse for the company, and of the place where payment was demanded after the reissue. As these objections are argued by both parties, we will decide them.

The strongest authority cited by the appellant in support of his first ground of demurrer is found in the case of May v. Kelly & Frazier, 27 Ala. 497. There the averment was, that the captain of the steamboat accepted for the owners, and the court held that in declaring against the principal on a bill áccepted by his agent, the authority of the agent to accept must be averred. It should be observed that this acceptance was made before the Code of 1852 went into operation. Under the law prior to the Code, the requirement of a sworn plea to deny the execution of an instrument, the foundation of the suit, was restricted to instruments purporting to be made by the defendant himself. As the onus of proving the exception was upon the plaintiff, when he alleged that it was done by an agent of the defendant, the averment of his authority to execute became necessary. The Code, however, expressly requires all pleas which deny the execution by the defendant, his agent, partner, or attorney, of any instrument in writing, the foundation of the suit, or the assignment of the same, to be verified by affidavit. — Rev. Code, § 2640. The form of the plea, prescribed by the Code, requires the pleader to aver that the instrument was not executed by him, or by any one authorized to bind him in the premises. — Rev. Code, p. 678. In the case under consideration the averment of the complaint is, the defendant indorsed the bill by its president, Arnold Seale. To this averment no objection can be taken by demurrer, nor can proof of its execution be required unless denied by a sworn plea. — Roney, Adm’r, v. Winter, 37 Ala. 277; Ala. Coal Mining Co. v. Brainard, 35 Ala. 476; Deshler v. Guy, 5 Ala. 186; McWhorter v. Lewis, 4 Ala. 198; Lazarus v. Shearer, 2 Ala 718; Fowlkes & Co. v. Baldwin, Kent & Co., ib. 705; Stringfellow & Hobson v. Mariott, 1 Ala. 573; Skinner v. Gunn, 9 Por. 305; Martin v. Dortch, 1 Stew. 479.

The question of variance between the bill offered in evidence and the one described in the complaint, will receive solution in the consideration of the rights and obligations ;of the parties respecting the former bill.

At the instance of the Central Bank, this bill was protested at maturity, and due notice thereof given to the drawer and indorsers. Afterwards, about the 25th March, 1863, as appears by the writing of J. D. Hopper, the secretary of the defendant, the indorsement of the directors was erased and the bill transferred to Noble & -Brother, and by successive transfers to the plaintiff. It is a fair presumption, if not actually proven, that the defendant had regained the bill after protest, and re-issued it. Was the indorsement prior to protest ipso facto extinguished by regaining the bill ? Could the defendant only negotiate it again by another and distinct indorsement ? If so, then, perhaps, the holder should again have demanded payment of the acceptor, and given notice of non-payment, within a reasonable time. This seems to have been the view taken by this court in the cases of Branch Bank at Montgomery v. Gaffney, 9 Ala. 153; Adams, Adm’r, v. Torbert, 6 Ala. 865; Kennon v. McRea, 7 Por. 175. Whether an indorser who again puts a bill into circulation after protest means to be bound by his second indorsement, or his first, on which his liability is fixed, seems to be a question of fact, to be determined by the jury according to the evidence. That he can make either agreement with his transferree is evident.

In the case of Hullum v. The State Bank, 18 Ala. 805, the defendant, Hullum, who was not a party to the bill before protest, indorsed it after the bank had acquired it, and after protest, at the instance of one of the indorsers whose liability was fixed. The court held that the nature and extent of his contract should be ascertained from his intention, as shown by the evidence, and thus tested, that he Intended to stand in reference to the bill as an indorser whose liability was fixed.

The bill of exchange in this case was transferred by the defendant, in March, 1863, to Noble & Brother, and by them in March, 1864, to Tichenor, who, three weeks after-wards, demanded payment of Echols, and in 1865, after the war, gave notice of his non-payment to the defendant. Whether a demand and notice after dishonor was necessary depends on the intention of the defendant in reissuing the bill.

The charge given by the court, at the request of the •plaintiff, was erroneous in assuming to determine the ex- ' ercise of due diligence on the part of the holder, and the-mature and extent of the contract of the defendant, to be> ¡ ascertained from his intention, as shown by the evidence. Hullum v. The State Bank, 18 Ala. 805; Br. Bk. at Montgomery v. Gaffney, 9 Ala. 153.

The bill offered in evidence was properly admitted. Its . legal effect, as between the particular parties to the suit, was sufficiently stated in the complaint. After maturity • and protest it was not requisite to present it again at the bank. The time at which that was to be done had passed, • and there was no new appointment of any place where ■payment should be demanded. In Puckett v. King, Upson & Co., the court says the note was not described according to its legal effect. The defendant had contracted to pay at a particular place on a stated day, and not absolutely and wherever the note might be presented to him.

The charge asked by the defendant was properly refused.

The judgment is reversed and the cause remanded.