Bank of Dothan v. Dawsey & Co. , 137 Ala. 584 ( 1902 )

HARALSON, J.

The first count was Avithdrawn by the plaintiff. The second and third were demurred to on the same grounds; which detaiurrers being sustained, the plaintiff made known, to thei court that it declined to proceed further, and judgment was rendered discharging defendants, and against plaintiff for costs.

The first, second and eighth grounds of demurrer were general, and require no consideration.

The statute provides, that “The receipt of a warehouseman on which the words ‘not negotiable’ are not plainly written or stamped, may be transferred by the indorsement thereof, and any person to whom the same is transferred must he deemed and taken as thei owner of the thing or property therein specified so far as to give validity to any pledge, lien or transfer made or created by such person.” — Code, § 4222. This receipt, as is held, does not represent money or value, but represents the property mentioned in it, symbolizing its delivery into the possession of the assignee, investing him with such rights as it is the intention of the parties to pass in the proper!v itself. — Danforth v. McElroy. 121 Ala. 106.

The third ground of demurrer is, that the counts fail to allege that on the receipts for the cotton the. words “not negotiable” were plainly written or stamped. But the second count does aver that these words were not indorsed on said receipts, and the third, that they “were not plainly written nor stamped” thereon. The receipts, therefore, under the provisions of said section 4222 of the Code were capable of being transferred by the indorsement thereof, so as to make the transferee the owner of the same for the purposes specified in, the statute.

The fourth and fifth grounds are, the one, that, the counts fail to allege to, whom plaintiff advanced the money on said receipts, and the other, that there is a failure of averment as to whom the receipts were indorsed.

These grounds were well taken. Good pleading as well a,s the evident purpose of the statute require that the defendants should be made aware in the counts of the traversable facts on which the plaintiff relies for recovery, so that it might the. better prepare to make defense. In respect to .the matters! suggested on demurrer, the pleader seems to have proceeded in the: averments of the counts with cautious indefiniteness. — McInnis v. Robun, 1 Port. 386; 6 Ency. Pl. & Pr. 249.

The demurrers were properly sustained.

Affirmed.