Cobb v. Bryant , 86 Ala. 316 ( 1888 )

SOMERVILLE, J.

The note sued on is payable to the “Singer Manufacturing Company, or bearer,” in the sum of seventy 50-100 dollars. Under the provisions of section 17 61 of the Code, a bond, bill or note, except those issued to circulate as money, “if payable to an existing person, or bearer, must be construed as if payable to such person or order.” — Code, 1886, § 1761; Blackman v. Lehman, 63 Ala. 547. Construing the note to be payable to the payee named, or order, and there being no indorsement of the instrument by the payee — no written order directing its payment to another — the legal title was clearly not in the plaintiff, Bryant.

The note being a contract for the payment of money, and at the same time not being commercial paper, an action on it could be prosecuted in the name of “the party really interested,” or the beneficial owner, whether he had the legal title or not. — Code, 1886, § 2594.

The title of the plaintiff is disputed by a sworn plea denying that he is the beneficial owner, in accordance with the requirements of - Rule of Practice No. 29 (Code, 1886, p. 810); and this cast on the plaintiff the burden of proving such ownership. Ordinarily, possession of personal property is prima facie evidence of ownership; but the possession of an agent does not prove an ownership in him of the principal’s property. The plaintiff is shown to have been the agent of the Singer Manufacturing Company, the payee of the note. This suit was originally brought before the justice’s court in his name as such agent, and was afterwards amended by striking out the name of his principal. There is other evidence, also, of such agency. He proved no title to the instrument, except a naked possession of it. The case of Jarrell v. Lillie, 40 Ala. 271, is a direct authority against the right of the plaintiff to recover on such a state of facts. In that case, there was a plea, verified by affidavit, denying that the plaintiff was the real owner' of the notes sued on, which were payable to certain named, payees, or bearer. The plaintiff was the attorney of the payees, and sued in his own name, relying on the fact of his possession as evidence of ownership. It was held that the possession of a note by an attorney, as such, was not sufficient to authorize a recovery by him in his own name, his ownership being denied by sworn plea.

The court erred in not giving the charge requested by the defendant, instructing the jury to find for him if they believed the evidence.

Reversed and remanded.