Higgins v. Merchants' & Planters' Bank , 217 Ala. 644 ( 1928 )

The judgment entry shows that this case was tried on count 2 of the complaint, which makes it unnecessary to consider the defendant's demurrers to other counts. From aught appearing, the note mentioned in count 2 is not commercial paper, and the allegation that it was the property of plaintiff was sufficient. Clayton v. Bank of East Chattanooga, 204 Ala. 64,85 So. 271. There was proof also that the plaintiff was the beneficial owner. If, after the note was introduced, it was shown to be commercial paper, and that the suit should have been brought by the legal owner, this point should have been raised by an objection to the evidence as for a variance, and could not be visited upon the demurrer to count 2. Moreover, the record discloses that the plaintiff was both the legal and beneficial owner. The note was delivered to the plaintiff by the payee, and was duly indorsed.

We do not think that the trial court erred in giving the plaintiff the general charge. The only pretense or claim of a payment was that the drafts or some of them given the plaintiff by the Lyman Company should have been credited on the note, but Lyman and plaintiff's agent both testify that the note had not been paid, and that the drafts in question were authoritatively credited to other debts of the Lyman Company, and not the note. Moreover, the charge did not instruct for any particular sum, and the plaintiff was entitled to same, if the undisputed evidence showed that anything was due upon the note.

The point that so much of the count as claimed an attorney's fee was subject to demurrer is so wanting in merit that a discussion of the question can serve no useful purpose.

The judgment of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and BROWN, JJ., concur.