Mayhall v. Hyde

This was a suit by appellant on a promissory waive note which purported to be executed by defendant (appellee) by mark, his signature purporting to be attested by one H. T. Camp.

Plaintiff's evidence, which was all that was introduced, tended to show: That the note in question was written out by Camp, defendant's name signed thereto by Camp (defendant being unable to write his name), and that defendant touched the pen while Camp made a cross-mark for defendant, his thus: "P. C. X Hyde." Opposite defendant's signature in the mark place where subscribing witnesses' names would usually appear was the signature of H. T. Camp. Further, that the note was made payable to Armour Fertilizer Works, and that at the time it was taken plaintiff was the agent of said Armour Fertilizer Works, and that Camp was the employee and agent of plaintiff. Also that the note sued on was at the time of the institution of the suit, and the time of trial, the property of plaintiff. Defendant interposed a sworn plea of non est factum.

In the case of Penton v. Williams, 163 Ala. 603, 51 So. 35, it was held by the Supreme Court that "where an action is upon an instrument in the form of a note, and the plea of non est factum is interposed, the plaintiff must show the execution of the instrument before it is admissible in evidence," and that "a promisee cannot become the agent of the promisor for the purpose of signing his name to a contract, and hence, the payee of an instrument in the form of a note could not sign the maker's name thereto and have the maker make his mark in the execution thereof." This holding seems to us to be exactly in point.

The trial judge having excluded the note here in question from the evidence, or refused to allow its introduction in evidence, and rendered judgment in favor of defendant, as stated in brief for appellant, the only question here is the propriety of his action in doing so.

If the payee in person could not sign the payor's name and make his mark for him, he could not do it by agent. Accordingly, we are of the opinion that the trial court's action was free from error, and the judgment is affirmed.

Affirmed.