Briel v. Exchange Nat. Bank

61 So. 276 | Ala. | 1913

SOMERVILLE, J.

On a previous appeal it was held that the note.here sued on was prima facie the personal obligation of the defendant, as well as of the Briel Shoe Company, but that that intendment and effect might be defeated by evidence dehors the note showing a contrary intention by the parties.—Briel v. Exchange National Bank, 172 Ala. 475, 55 South. 808.

The names of the intending maker or makers Avere not in the body of the note, and the three signatures Avere written one under the other: Briel Shoe Co.; Fred C. Briel, Prest.; J. H. Taylor, Mgr.

The trial in the lower court was by the judge, without a jury, and on the evidence adduced as to the meaning and effect of defendant’s signature the conclusion was reached that he was thereby personally bound for the payment of the note, and there was judgment for plaintiff accordingly.

The decisive question was purely one of fact, and on this appeal the judgment of the trial court comes to us with the conclusive force and effect of a verdict rendered by a jury, and the only inquiry we may here make is whether there was sufficient evidence to support the judgment.—Montgomery Lodge, etc., v. Massie, 159 Ala. 437, 49 South. 231; Dodge v. Irvington Land Co., 158 Ala. 91, 48 South. 383, 22 L. R. A. (N. S.) 1100.

“In such cases the rule is not to reverse the finding, unless it is so manifestly against the evidence that a judge at nisi prius would set aside the verdict of a jury rendered on the same testimony.”—Nooe v. Garner, 70 Ala. 443. And that should never be done, “unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.”—Cobb v. Malone, 92 Ala. 630, 9 South. 738. As said in that case, the trial judge “has heard and seen the witnesses testify, observed their tone and demeanor, and noticed their candor or convenient failure of memory to avoid impeachment, or for other improper purpose. The appellate court, possessing none of those aids and advantages, and receiving the evidence on paper only, is less qualified to determine what evidence is worthy of belief, or what weight should be given to that which has been rejected by the jury, and may give undue weight to the testimony of some of the witnesses.”—92 Ala. 634, 9 South. 739.

In this case the prima facie intendment of personal obligation ivas supported by the testimony of Cody, and by defendant’s letter to Cody, in reply to the latter’s request for a general personal guaranty of his company’s obligations to plaintiff, saying: “I would be glad and would' prefer in the future that each note as it is received, or those standing now, be changed to this effect, viz., signed ‘Briel Shoe Company’ with my personal signature and Taylor’s as well.”

This note was signed after this request and this statement; and, although former notes had been signed in the same way, and the debts secured were in fact, and were entered on plaintiff’s boohs as, the debts of the Briel Shoe Company, nevertheless, despite those counter indications, and however the preponderance of the evidence may be, we think the finding of the trial court was sufficiently supported by the evidence; and we are unable to agree with appellant’s insistence that there was such a great preponderance of the evidence against it as to convince us that it is wrong and unjust.

The cases cited by appellant are not in ppint, since they do not involve an issue of fact on the actual understanding and intention of the parties, such as is here presented.

Cody testified, without objection, that the signature in question was accepted by the plaintiff “as the personal signatures of Briel and Taylor.” Thereafter, against defendant’s objection, plaintiff was allowed to ask Cody if the note sued on Avas sent to Briel by plaintiff for his individual signature, in accordance with an agreement to sign it, and if, Avhen returned with Briel’s name signed to it, it was accepted as such personal signature; the question being answered in the affirmative.

The question called for an answer as to two distinct and separable facts, the first of which was clearly admissible. The objection to the whole was too broad, and was properly overruled. Again, as to the acceptance of the signature, the answer was but a repetition of his former statement, and added nothing thereto. With the entire answer excluded, however, the conclusion would not have been materially affected.

The judgment will be affirmed.

Affirmed.

' Dowdell, C. J., and McClellan and Sayre, JJ., concur.