Ex parte Bledsoe , 180 Ala. 586 ( 1913 )

ANDERSON, J.

The petition questions the soundness of the opinion of the Court of Appeals, Avherein it' held that the instrument sued upon (which will be set out by the reporter) was negotiable. The opinion of the Court of Appeals in so holding is supported by the Alabama cases there cited.—First Nat. Bank v. Slaughter, 98 Ala. 602, 14 South. 545, 39 Am. St. Rep. 88; Williams v. Flowers, 90 Ala. 136, 7 South. 439, 24 Am. St. Rep. 772; Montgomery v. Crossthwait, 90 Ala. 553, 8 South. 498, 12 L. R. A. 140, 24 Am. St. Rep. 832; McGhee v. Importers’ & Traders’ Bank, 93 Ala. 192, 9 South. 734. Indeed, this is conceded by counsel; but it is insisted that these decisions Avere rendered before the adoption of the “Uniform Negotiable Instruments LaAV,” as it appears in chapter 115 of the Code of 1907, and that the instrument in question is not negotiable under the terms of said law.

It is suggested that the instrument contains several contracts that are entirely independent of any agreetnent to pay money in that there “is' an agreement that the property, for the purchase price of which the note is given, shall remain the property of the payee until it is fully paid for.” There is also-the further agreement that, “if the property be destroyed before being paid for, the loss shall be the loss of the maker, and not of the vendor of the property.” We do not think that either of these provisions amount to an order to promise to do an act in addition to the payment of money,, as prohibited by section 4962 of the Code of 1907. The-maker does not thereby assume any burden in addition, to paying the note, and the retention of the title does not render the instrument nonnegotiable.—Chicago Equipment Co. v. Merchants’ Nat. Bank, 136 U. S. 268, 10 Sup. Ct. 999, 34 L. Ed. 349; Third Nat. Bank of Buffalo v. Spring, 50 App. Div. 66, 63 N. Y. Supp. 410, and cases there cited. The consent that the loss of the property should not affect the liability to pay the note tended to help rather than detract from its negotiability, as it made the promise to pay unconditional by waiving the right to question the liability because of a loss or destruction of the property before maturity. This was but a waiver of a possible defense that the maker might have to the note in case of the destruction or loss of the property, and was sanctioned by paragraph 3 of section 4962 of the Code of 1907.

Paragraph 5 of section 4959 expressly authorizes the inclusion of the cost of collection or attorney’s fees in the note.

Counsel relies upon the case of Holliday v. Hoffman, 85 Kan. 71, 116 Pac. 239, 35 L. R. A. (N. S.) 390, Ann. Cas. 1912D, 1, as supporting the contention that the note is not negotiable. The instrument there considered is materially different from the one in hand, as it provided for the delivery by the maker of additional security upon the demand of and to the satisfaction of the holder, in default of which the note should mature at once, and also provided that, if the security should depreciate and the holder should deem the security insufficient, the maker would, upon demand, deliver to the holder a mortgage upon certain real estate. This ■clause was pointed out by the court as the most serious objection to the form of the note as a negotiable instrument. It is true that the court, after deciding this question, proceeded to quote from the case of Killam v. Schoeps, 26 Kan. 310, 40 Am. Rep. 313, language somewhat- contrary to the present holding, but which was not decisive of the question then under consideration, and we do not think that the Kansas court would have pronounced the note in question non-negotiable. But, be that as it may, the present holding is within line with the Supreme Court of the United States and the' New York court in dealing with laws similar to chapter 115 of the Code of 1907.

The writ of certiorari must be denied.

All the Justices concur, except Dowdell, C. J., not sitting.