40 So. 45 | Ala. | 1909
This action was brought by the appellant against the appellee on a promissory note. When the case was before this court on a former appeal, the note was not set out-in the record, and, from the description in the complaint copied into the record, it
When this case was here before, we held that plea 6 was subject to demurrer, because it did not show that the corporation (the bank) had received the proceeds of the work claimed to have been done by defendant under the ultra vires agreement. — First Nat. Bank v. Alexander, 152 Ala. 585, 44 South. 866.
Plea 3, in the present record, alleges that the agreement was that the note was to be paid “by the proceeds of work done,” etc., and “that he paid to plaintiff, by the proceeds of work done, * * * all that was due on said note, prior to the commencement of this suit”; also that said “contract or agreement was, before the commencement of this suit, executed in full, and the said bank received the full benefit thereof, and received the proceeds of this agreement in full accord and satisfaction of said note, before the commencement of this suit; said proceeds being in money.” This is simply a plea of payment in money, and, if all that was due on the note was paid in money to the bank, it is immaterial from what source the money was derived. The illegality of the agreement has no bearing on the case. There was no error in overruling the demurrer to said third plea.
In examining the witness A. A. Alexander, he was asked by the defendant whether he was employed by R. L. Ivey to do work on the railroad. The only objection made to this qfiestion was that said Ivey acted in a fiduciary capacity to plaintiff and is now deceased. It was not shown that said witness had any “pecuniary interest in the result of the suit”; hence there was no error in overruling the objection.
There was no error in allowing the witness Alexander-to testify that he heard R. L. Ivey tell the defendant that he had paid off the note in suit, and that he would bring it to him the next time he came up. Said Ivey was the-cashier of the plaintiff bank, which officer is the proper-person to receive payment of notes due the bank, and his admissions of payment were admissible. The state-ment does not mention how the payment was made.
The fact that there was another suit pending between the plaintiff and the witness Alexander did not render said witness incompetent. to testify -as to a payment made by his son to said Ivey as cashier of the bank. That did not make the witness interested in the result of this suit. It is not shown that the suits related to the same note.
The answer to said question is not liable to the objection that it was “not- shown that the plaintiff received the benefit of said work,” or that “said amount was paid in money-”; nor does it impinge upon the principle that said cashier was not authorized to receive anything but money as a payment on the note. While he speaks of the fact that they had been paid for their work, yet the gist of the testimony is that $125 or $130 in cash was paid on the note, and that the cashier said that paid the note. The objections were properly overruled. •
Tffiere was no error in overruling the objection to the question to the same witness, and the answer thereto, as to what Ivey said about the agreement as to how the note was to be paid. Said witness swore that he had
No error can be predicated on the sustaining of objections to the various questions to the witness Mrs. E. L. Ivey as to the books of the bank and their contents as to credits on the note, beyond those indorsed, as she said she had no independent recollection of the matters, and could not tell, without seeing the books, whether there were any such credits thereon.
The judgment of the court is affirmed.
Affirmed.