Blythe v. Simmons

Smith, C. J.,

delivered the’ opinion of the court.

Appellees filed their bill in the court below against C. S. Lothrope, J. E. Blythe, and the Bank of Newton, alleging that they had been induced by fraud to execute to C. S. Lothrope & Co., a partnership composed of C. S. Lothrope and J. E. Blythe, several promissory notes, whieli notes were afterwards purchased by the Bank of Newton; that this bank had instituted several suits thereon against appellees, which suits were then pending in the circuit court of Newton county; and by an amendment to the bill it was alleged “that the Bank of Newton had notice of the fraudulent character of the contracts of which the said notes were parts.” The bill prayed that the bank of Newton be joined from prosecuting its suits at law on the notes, and that on final hearing—

“the Bank of Newton be required to deliver up to these complainants their said notes, and that the Bank of Newton be required to take its decrees against the said J. E. Blythe, as well as against these complainants, and exhaust its remedy against the said Blythe before proceeding further against these complainants; that the said J. E. Blythe and the said C. S. Lothrope be adjudged and decreed to be primarily liable to the said Bank of Newton for the amount paid by the' said bank for the said notes, and, if decree should be entered against these complainants in favor of said Bank of Newton, they have their decrees against the said J. E. Blythe and C. S. Lothrope, or either of them; that the said causes be taken up by this court and dealt with by this court and decree or decrees entered in such manner as to this court may seem necessary in order that justice may be done and that liability may he fixed upon the party or parties that should bear it. Complainants pray that, if they are mistaken in the relief herein asked for, they be granted such other further special or general relief as the case requires or as in equity they are entitled to. As in duty bound they will ever pray. Answer under oath is waived.”

The decree entered on final hearing is not only not in accordance with the prayer of the bill, but is not supported by any of the allegations thereof. By it the bill was dismissed in so far as it sought relief against the Bank of Newton, and appellant was directed to pay to appellants the amounts of the various notes executed by them, together with interest thereon.

Appellant can only be called upon to make good to ap-pellees the amount of any damage suffered by them by reason of the execution of these notes, conceding that their execution was induced by fraud. The bill contains no allegation that the notes have been paid either in whole or in part, or that appellees have been otherwise damaged by reason of the execution thereof, but, on the contrary, alleges that the notes have not been paid and that suits are now pending by which payment thereof is sought to be coerced. Under this decree, appellees may collect from appellant the full amount of the notes though they themselves may never pay them.

It is true that it appears from the evidence that ap-pellees have adjusted their differences with the Bank of Newton, hut this fact did not warrant the court in entering the decree: First, because only such, a decree can be entered as is supported by, the allegations of the bill; and, second, because, while the evidence discloses an adjustment with the bank, it does not disclose how the adjustment was made or what amount, if any, appellees paid the bank pursuant thereto.

Reversed and. remanded.