Quarles v. Kendrick Mercantile Co. , 16 Ala. App. 486 ( 1918 )

The beneficial owner of a nonnegotiable promissory note may maintain an action thereon, although he is not the holder of the legal title. Code 1907, § 2489. Therefore, if we treat the averments of the second count of the complaint as to the indorsement of the note by the payee to the plaintiff as insufficient to show that the legal title passed thereunder, in the absence of an averment that the indorsement was completed by delivery (Code 1907, § 4985), the demurrers, taking the point that the averments of the complaint were insufficient to show that the plaintiff was the holder of the legal title, were properly overruled in this case, for the reason that it does not appear from the complaint that the note sued on contained words of negotiability, and was governed by the commercial law. Code 1907, § 2489; Weinstein et al. v. Citizens' Bank, 13 Ala. App. 552, 69 So. 972; Whatley v. Muscogee Bank,197 Ala. 402, 72 So. 1018. However, in an action on a negotiable note, an averment in the complaint that the note was indorsed to the plaintiff by the payee imports a delivery. Sherrill v. M. M. Bank, 195 Ala. 175, 70 So. 723.

So, also, if the averments in this count that the note "was made by the defendants" be treated as insufficient when construed in connection with the averment that the note was signed "Quarles and Kimmer, per R.R. Kimmer," to impose on the plaintiff the burden of showing that the note was efficaciously executed by appellant, and that the question is well presented by demurrer, all injury resulting from the overruling of the demurrer was averted by the defendant filing a plea of non est factum, which properly presented the issue and placed the burden upon the plaintiff of showing that the note was so executed.

The appellant's fifth and sixth pleas Were originally filed as a partial answer to the first count of the complaint, to wit, "as to the item or charge of $86.50 for mower and rake," and were adopted verbatim as an answer to the third count. It is so manifest that the demurrers to the pleas in this form were properly sustained that we deem it unnecessary to treat them further. Moreover, the matters set up by these pleas were provable under the general issue. We have examined the several rulings of the court on the pleadings, and find no error therein.

There was evidence tending to show that Kimmer was authorized by Quarles to open an account with the plaintiff for supplies to be used in the joint adventure and farming operations in which Quarles and Kimmer were engaged, and that the account sued on was made in pursuance of this authority. There was also evidence that the mower and rake for which the note described in the second count of the complaint was given were purchased through the plaintiff from the International Harvester Company, and after the note was executed by Kimmer in the names of Quarles and Kimmer, as averred in the second count of the complaint, that Kimmer informed the defendant Quarles of the fact of the purchase of said mower and rake and the execution of said note, and that Quarles, with a knowledge of all the facts, ratified the execution of the note. Therefore, it is not essential to the plaintiff's right of recovery in this case that a partnership as between Quarles and Kimmer be shown. Furthermore, if, as the undisputed evidence shows, Kimmer and Quarles each participated in the profits of the business, although Kimmer had no interest in the capital or property invested in the business, this would constitute them partners as to third persons, and they were liable as such in this case. McDonnell v. Battle House Co., 67 Ala. 90, 42 Am. Rep. 99.

On the case made by the evidence, it clearly appears that the only way losses could result to Quarles and Kimmer in their farming operations would be that the expenses of operation exceeded the profits arising from the business, and charge designated "100 No. C," as applied to the evidence, hypothesizing that they were each liable for one-half of the expenses, was a correct statement of the law as to the essentials of a partnership inter se.

If it could be said that the charge was subject to the criticism that it was misleading in not clearly stating that an agreement to share losses is an essential to create the relationship of a partnership inter se, its misleading tendencies were clearly overcome by the oral charge of the court and by special charge 9 1/2, given at the request of the defendant Quarles.

Under the phases of the evidence adverted to, charge B was properly given at the request of the plaintiff. There was evidence tending to sustain all the counts of the complaint, and the affirmative charges as to the second and third counts of the complaint, requested by the defendant Quarles, were properly refused, and the motion for a new trial was properly overruled.

We find no reversible error in the record, and the judgment is affirmed.

Affirmed.