Sharp v. Allgood , 100 Ala. 183 ( 1893 )

STONE, C. J.

It is contended for appellee that, even if the Circuit Court erred in the charges given and excepted to on the trial' of this case, that error was healed by the ruling of the court, four days later, on the motion for a new trial. There had been two pleas interposed, usury, and a special plea of non est factum. The plea of usury was unquestionably sustained. The note sued on showed on its face that interest was to be paid at the rate of 12¿ per cent. Notwithstanding this, the jury allowed to the plaintiff interest on the note from its maturity up to the trial. The defendant moved for a new trial on two grounds : First, “that the verdict is contrary to the evidence,” and second, “that the jury ignored the plea of usury which was proven by the note itself on which the suit was brought, and allowed interest on the note, which is included in the verdict.” Passing on this motion, the Circuit Court entered the following judgment: “Came the parties by attorney, and by consent of parties the judgment heretofore rendered in this case is hereby reduced to two hundred and eighteen and 75-100 dollars, and the plaintiff is taxed with all the costs of the suit.” This sum, $218.75-100, is the sum of the unpaid principal of the note sued on. The contention is that this corrected judgment, entered by consent, cured any errors that may have been committed on the trial; or rather, was a consent to waive them. We do not so understand, or interpret the record. The consent was not that the judgment might be rendered. It was that it might be reduced. The jury by their verdict had given to plaintiff $393.38-100. Because of this excessive amount a new trial was moved for. The amended judgment clearly implies that but for the reduction of the recovery a new trial would have been granted. The presiding judge had no power to compel the plaintiff to remit a part of the verdict. He exhausted his power when he announced that he would grant a new trial, unless the plaintiff made such remission. The record justifies the inference that this is precisely what the court announced would be done, and that thereupon counsel consented to remit, and did remit all over the principal of the note. We hold that this remission, or reduction of the amount of the recovery is what the parties consented to, and that it was in no sense a waiver of the other defense relied on.

The other line of defense is made good, if the jury believed the testimony. All the testimony bearing on the question was to the effect that Sharp, if. liable at all, was only a surety of Thomas Stewart, the principal debtor. He refused to sign the note, unless A. M. Stewart would also sign as surety. On no other terms was Thomas Stewart authorized to use the paper. A. M. Stewart’s name was attached to the paper as a co-maker, but there was testimony tending to show that his, the said A. M. Stewart’s name, was placed there without his act or authority. Being sued on the paper he had successfully defended the suit on a plea of non est factum. If the jury believed Sharp’s account of the transaction, and that he signed the Dote and consented to be bound only on the condition that A. M. Stewart would become a co-maker, and if they further found that A. M. Stewart’s name was placed there without his authority or ratification, then this was and is a defense for Sharp in the present action. And it is no answer to this defense that Allgood was not informed of this condition anterior to his acceptance of the paper. The authorities hold that it was his duty to inform himself of the genuineness and binding obligation of the signatures, before accepting and acting on them.—Bibb v. Reid & Hoyt, 3 Ala. 88; Robertson v. Coker, 11 Ala. 466; Firemen's Ins. Co. v. McMillan, 29 Ala. 147; Guild v. Thomas, 54 Ala. 414; King v. State, 81 Ala. 92; Smith v. Kirkland, Ib. 345; Marks v. First National Bank, 79 Ala. 550; Evans v. Daughtry, 84 Ala. 68; Campbell v. Larmore, Ib. 499; State Bank v. Evans, 15 N. J. Law (3 Green.) 155; Pawling v. United States, 4 Cranch, 219; Linn County v. Farris, 52 Mo. 75; Ayres v. Milroy, 53 Mo. 516; Lovett v. Adams, 3 Wend. 380; Bronson v. Noyes, 7 Wend. 188; Pepper v. State, 22 Ind. 399; People v. Bostwick, 47 Barb. 9; Perry v. Patterson, 5 Hump. 133.

Several of the charges given and excepted to are not reconcilable with these principles.

Beversed and remanded.