Daughdrill v. Helms , 53 Ala. 62 ( 1875 )

MANNING, J.

The demurrer of defendant in this cause was filed with his answer ; and the attention of the court appears not to have been directed to it. No judgment is thereupon rendered. The submission entry recites : “This day came the parties by their solicitors, and this cause is submitted for final decree on the pleadings and proof.” Then follows a note of the evidence offered on behalf of each party. As nothing was said about the demurrer, and the parties proceeded to a trial, we must consider that the demurrer was waived by defendant. Chapman v. Hamilton, 19 Ala., 121.

No objection was taken by demurrer, or in any other manner, so far as the record shows, to the omission to make Crigler a party defendant. And if there had been any such objection, after the answer of defendant Daughdrill was filed, it was evident that the latter was the only proper party to be sued, — for he admits, what the bill charges, that the conveyance of the land was made by Howard to him alone, and then affirms that he was the sole purchaser of it; that Crigler’s name was signed with his to the note, only because they were in some other matters, in partnership, with each other ; but that Crigler had no interest in the land. Therefore, if necessary, the bill should have been amended, and it would be proper for us to consider it amended, so that the portion which alleges that Crigler was a joint purchaser of the land with Daughdrill be stricken out. The assignment of error, that Crigler, or his assignee in bankruptcy, should have been, and was not made a party defendant, is therefore not well made. Chapman v. Hamilton, supra; McMaken v. McMaken, 18 Ala., 576.

The evidence preponderates in favor of complainant’s allegations that the two notes set forth in the pleadings, were both given for part of the price of the land. The chancellor, therefore, did not err in charging it with a lien in favor of the vendor’s administrator for the payment of them.

But the evidence conclusively proves that the sale of the land, during the war, was made for Confederate currency ; that a large partial payment of the price was then made in that currency, and that the notes then given for $1,000 and $500, respectively, with interest from their date, February 9th 1863, payable on the 25th of December 1863, were according to the understanding of the parties, although not so expressed in the notes, to be discharged, with Confederate currency.

The evidence shows, also, that defendant Daughdrill, sent to the administrator of Howard, Martin Hale, by a son of the latter, on the 10th of February 1865, $1,100 of Confederate Treasury notes, to be applied toward payment of his said notes to Howard; for which Hale made an endorsement on the $1,000 note as follows: — “Received on the within note eleven hundred dollars in Confederate money by the hands of Lewis F. Hale, this 10th February 1865,” — without signing it.

At this date (as we know) Confederate treasury notes were so depreciated as to be of very little value ; the note on which the endorsement was made, was not expressly made payable in them; and Martin Hale, whose deposition was taken, testifies that he did not receive the $1,100 of Confederate treasury notes, as a payment on Daughdrill’s note ; that he refused to do so; but that Lewis F. Hale urged him to take them from him, and said he was going away ; and that he therefore, l'eceived them from said Lewis, (who was his son,) and made the endorsement on the note of Daughdrill, only as a memorandum of the fact that he had received of Lewis F. Hale, that amount of Confederate notes that belonged to Daughdrill.

If Hale took them only for the reason mentioned, and made the indorsement merely as such a memorandum, he ought to have taken an early opportunity' to inform the defendant of this, and to return the paper to him. He does not testify that he made any endeavor to do either. We think that Daughdrill otight, therefore, to be credited with the value of these notes at the time Hale received them. It was Daughdrill’s duty to pay his notes when they became due, December 25th 1863 ; and if instead of doing so then, het waited until Confederate currency became almost valueless, a court of equity may very well, under the circumstances of this case, require that the loss by depreciation, fall upon him.

Since it was his right, however, to pay with Confederate currency, his notes when they matured, December 25th, 1863, the. register ought to have been instructed to ascertain and report what was then the value in the present currency of the United States of $1,500 in Confederate treasury notes with interest to that day from February 9th, 1863, and to deduct from the amount of that sum and interest thereon from December 25th, 1863, to February 10th, 1865, the value inTthe present currency of the United States of $1,100 of Confederate treasury notes, and charge the defendant with the balance and interest thereon, from February 10th, 1865, to the date of the report; for the payment of which the land is chargeable with the vendor's lien.

The order overruling the exceptions to the master’s report, and so much of the prior decree as contains the instructions to the register as master, in this cause, are reversed, and the cause remanded to be proceeded in as hereinbefore indicated.