Manning v. Maroney , 87 Ala. 563 ( 1888 )

SOMERVILLE, J.

1. Tbe defense set up in tbe second plea — viz., a failure to present tbe bill sued on, and to give due notice of dishonor — was equally available under tbe plea of tbe general issue, and tbe record shows that tbe defendant bad tbe full benefit of it on tbe trial of tbe cause. Sustaining tbe plaintiff’s demurrer to tbis plea is, for tbis reason, error without injury, if error at all. — Phoenix Ins. Co. v. Moog, 78 Ala. 284

2. Tbe objection interposed to tbe admission in evidence of tbe bill of exchange described in tbe complaint, was not well taken. Tbe instrument was averred to be tbe property of the plaintiff, transferred to him by tbe indorsement of the payee; and there was no sworn plea, denying tbe fact of ownership. Tbe validity of such transfer could not, therefore, be raised under tbe plea of tbe general issue. — Code, 1886, §§ 2676, 2770; Rule of Practice, No. 29, p. 810, Code (1886); Agee v. Medlock, 25 Ala. 281. Tbe averment that tbe bill was indorsed to plaintiff by tbe payee is tantamount to an averment of tbe personal identity of tbe indorsee, F. M. Maroney, and tbe plaintiff Frank M. Maroney.

3. There was nothing in the objection, that tbe paper was mutilated, because of tbe memorandum indorsed on it by tbe commissioner for tbe purpose of identification, when it was attached as an exhibit to tbe deposition of tbe witness Eontaine; nor in tbe suggestion that preliminary evidence of demand, protest, and notice of dishonor, or waiver of them, should first have been offered, before offering tbe paper. Tbis .was mere matter of defense, not necessary to be negatived by anticipation on plaintiff’s part before introducing tbe paper. Tbe execution of tbe paper by tbe drawee, moreover, was sufficiently proved, and it was admissible under tbe other counts of tbe complaint.

4 Tbe contents of tbe letter, written by order of tbe defendant, Manning, to the drawees of the bill, Hill, Fontaine & Co., instructing them not to pay the bill, was properly admitted in evidence. We discover nothing in the record introduced on this point not entirely relevant. The drawees resided in Memphis, Tennessee, and the letter was received by them there. Presumptively, it continued to remain out of the jurisdiction of the court, and was in Tennessee at the time of the trial. If the contrary was true, it should have been proved by the defendant. Where a paper is beyond the jurisdiction, its contents can be proved by secondary evidence without proving its loss or destruction. —Young v. East Ala. Railway Co., 80 Ala. 100; Elliott v. Dyche, Ib. 376; Gordon v. Tweedy, 74 Ala. 232.

5-6. It is objected that the statement as to the contents of the letter, which was disclosed by the witness Fontaine in his deposition, was not responsive to the third interrogatory, under which it was introduced. The inquiry made by this interrogatory was, whether the bill in suit had ever been “presented” to the drawees “for payment or acceptance.” The answer shows both a presentation, and excuse for nonpayment — viz., a specific instruction of the drawer not to pay. The rule is settled as one of pleading and evidence, and was long ago announced in this State, that facts which excuse demand and notice will, in law, be deemed proof of such demand and notice. Allegation of these facts may, therefore, be proved by any fact showing a waiver of them, demand and notice, and waiver of them, being in law equivalent of each other. — Kennon v. McRea, 7 Port. 175; Shirley v. Fellows, 9 Port. 300; Spann v. Baltzell, 46 Amer. Dec. 346; Hibbard v. Russell, 41 Ib. 733. The answer of the witness, in this view of the law, was responsive, and as such admissible, because the answer showed a good excuse for failure to give notice of dishonor to the defendant as drawer. “If the drawer of a bill or draft countermands payment, he thereby dispenses with presentment and notice of dishonor to himself. So, if he informs the payee that he has withdrawn the funds against which the bill is drawn.” 3 Randolph on Com. Paper, § 1385; 2 Daniel Neg. Instr., §§ 1105, 1147; Byles on Bills, 286, 298; Jacks v. Darwin, 3 E. D. Smith, 558.

This instruction not to pay, by which the drawer brought dishonor on his own paper, was equally a good excuse for failure to protest the bill; the rule being that, generally, whatever will in law excuse, or amount to a waiver of notice of dishonor, will equally excuse protest. — 3 Band. Com. Paper, §§ 1148, 1161, In such cases, the drawer, being the real debtor, and having knowledge of the fact in advance that payment will be refused by the drawee, by reason of his countermand, can suffer no injury from the alleged negligence of the holder.—Campbell v. Webster, 2 C. B. 258.

7-8. The instructions of the court as to the set-off were correct. The bill was commercial paper, and being negotiated for value before maturity, was not subject to set-off or recoupment, by the express provisions of the statute. Code, 1886, § 2684; Bank v. Poelnitz, 61 Ala. 147. In any event, unless the defendant, Manning, was the owner of the cross demands, prior to the indorsement of the bill of exchange to the plaintiff, and this fact was known to the plaintiff before he acquired title to the bill, the set-off would not be available in an action on the bill, as in the present suit. The note and account claimed by the defendant as a set-off, were the property of Jordan, Manning & Co., a partnership of which defendant was a member. They were due by LaPayette Maroney, the payee and indorser of the bill, not by the defendant. As against such payee, they were not a legal set-off at the time of the indorsement, for want of mutuality.—Cannon v. Lindsey, 85 Ala. 198, and cases thei^e cited. And admitting that a partnership demand against the plaintiff in an action may, by consent of all the partners, be set off against a demand by the plaintiff against an individual partner, that principle can have no application here, because it does not appear that there was any consent of the partners to such use of their claim before the assignment of it to defendant, and that the plaintiff knew of such consent, even if that would avail. The consent, given at the trial can not relate back to the date of the assignment, so as to make the set-off good against the assignor; and unless it was good against him, it can not be so against the defendant, not being his debt, and the paper sued on being governed by the commercial law.—Jones v. Blair, 57 Ala. 457; Code, §§ 2684, 1765; McKenzie v. Hunt, 32 Ala. 494.

The charge given by the court recognized these principles, while the instructions refused, on request of the defendant, either ignored, or were in direct conflict with them.

The rulings of the court are free from error, and the judgment is affirmed.