Sample v. Tennessee Valley Bank

A declaration on a promissory note by a transferee is sufficient if it simply avers that the note is the property of the plaintiff. Clark v. Moses, 50 Ala. 326; Morris v. Poillon,50 Ala. 403; 8 Cyc. 123(b). The complaint was not subject to the demurrer.

The defendant's pleas of failure of consideration and fraud in the procurement of the note were fully supported by the evidence, and the burden devolved upon plaintiff to establish its replication that it was a bona fide purchaser for value in due course. This it did by evidence which was undisputed, and from which no adverse inference could have been drawn, and hence the general charge for plaintiff was properly given. Had plaintiff's witness, who bought the note, been allowed to answer that along with it he bought a lot of other similar notes, the amount of which was unusual in plaintiff's business, it would not have affected the result; for that fact would not have supported an inference of bad faith in purchasing the note. And nothing short of bad faith would have destroyed plaintiff's standing as a bona fide purchaser. 7 Cyc. 944 (B).

The special rejoinders to which demurrers were sustained were no more than pleas of the general issue; and the matter set up therein, so far as it was relevant, was available under the general issue. There could have been no prejudicial error in their elimination.

Under Code, § 3967, defendant could not question plaintiff's ownership of the note sued on, in the absence of a sworn plea of denial. There was no such plea on file, and the refusal of the trial court to allow its filing at the close of the evidence was within its discretion, and is not revisable on appeal. Craig Co. v. Pierson Lbr. Co., 179 Ala. 535,60 So. 838.

The motion to exclude from the evidence the note sued on was without merit, but it came too late in the absence of any objection to the note when it was first introduced.

We find no error in the record, and the judgment must be affirmed.

Affirmed.

ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.