Boyd v. McIvor

11 Ala. 822 | Ala. | 1847

ORMOND, J.

We do not consider it necessary to determine whether such a case as this, is one in which the court would compel the defendant to join in a demurrer to evidence, because, conceding it be such, the court erred in its judgment. We have made the preceding remarks, because it is by analogy to a demurrer to evidence only, that such a charge as the present can be sustained.

No question arises upon this writ of error, of the propriety of the admission of the declarations of R. H. Goldthwaite, that he was the agent of his brother. We must therefore consider the fact as proved, that R. H. G. was authorized by George Goldthwaite to act as his agent, in ascertaining the value of some improvements made by the defendant on the Mclvor plantation, which he had rented, and it was fully -^proved that these improvements amounted to $200, which sum the agent stated was to be a credit upon the amount to be paid as rent.

**» It is not shown how much the rent was, nor is it shown that this note was given for the rent, but it bears date about that period, is payable to G. Goldthwaite, who, from the proof, it appears assumed to act for Mclvor, in relation to the rent of the plantation, as he delegated his brother to ascertain the amount of the improvements, which was to be allowed as a credit against the rent. The note in suit was once in the possession oí R. H. G., as the initials of his name, in his hand-writing are found upon it. And this note is af-terwards put in suit by Mclvor, to whom it has been assigned without date and without recourse, by the payee. We will not say that this array of circumstances, unexplained, would compel a jury to infer that this note was given for the rent of the Mclvor place, and was entitled to a discount of $200, for the improvements made by the tenant, but if the jury had so found, no court should have granted a new trial, and it follows that a court assuming to pass upon the effect of the evidence, was unauthorized to say, that a jury must have found for the defendant.

The facts proved in regard to the payment in the office of the payee of the note, shortly after its maturity, would be conclusive if the suit were now in the name of the payee, and the facts were not explained by him, so as to relieve the case from the natural and legal inference, that it was a payment of the note.

It is contended, that as the note is payable in bank, and therefore under our statute to be governed by the commercial law, and as the presumption arising from the blank in-dorsement is, that it was transferred before it was due, no evidence of set off or payment as against the payee is admissible. This is doubtless the general rule. Waiving for the present the consideration of the question, whether this note was taken by the payee as the agent of Mclvor, (if it be so found by the jury,) and whether in such a case a payment to the agent before notice of the transfer to the principal, would not be good, and considering it merely as a mercantile security, we think the circumstances attending the'"' transaction, cast such a suspicion over it, as to require the indorsee to prove that he gave a valuable consideration for" it, and acquired it before it was dishonored. [Thompson v. Armstrong, 7 Ala. 256.] In this aspect of the case, and under the proof as it was before the jury, the court should have instructed them to inquire, first, whether the defence of payment and set off were made out by the proof, and if so, that then the plaintiff could not recover without proving himself a bona fide holder.

It is not necessary to protest an inland bill of exchange to enable the holder to sue. The only effect of the protest is, to entitle the holder to damages. [Leigh & Co. v. Lightfoot, at the present term.] Let the judgment be reversed, and the cause remanded.