43 Ala. 360 | Ala. | 1869
This was an action of debt, by summons and complaint, commenced in the circuit court of Dale county,, in this State, on the 22d day of January, 1867, by the appellant, Brooks, as' plaintiff, against Martin, the appellee, as defendant, and founded on the following promissory note, viz : “ $150 00. By the twenty-fifth of December next, I promise to pay Martha Goff, or bearer, the sum of one hundred and fifty dollars in gold, or its equivalent. This, the 25th December, 1865.”
(Signed,) B. B. Martin.”
On the trial, it was shown that Mrs. Goff was the widow of Warren Goff, deceased, and that said note was ínadé payable to her, and it was given for a horse sold by her to Martin, after her husband’s death ; that Martin took possession of the horse, under the sale ; the horse belonged to the estate of the deceased. These facts were all known to Martin when he made the purchase. Before the note fell due, apd while the horse was in the possession of Martin, under said sale, the appellant, Brooks, proposed to purchase said note from Mrs. Goff. But before concluding his purchase of the note, he “ came” to Martin and informed him that he was about to trade for the note, and asked him if he had any defense against it, and Martin replied, that the note was “ all right.” But at that time, Martin did not know that he had any defense. Whereupon, the appellant, Brooks, traded for the note. This was á considerable time before its maturity. A short time before the maturity of the note, and after Brooks had traded for the note, Wiley Goff administered on the estate of said Warren Goff, deceased, and demanded the horse from Martin, as belonging to the estate of said deceased. And thereupon Martin
There can scarcely be a reasonable doubt that the words used by Martin, in answer to Brooks’ inquiry about the note, were calculated to mislead and deceive, if they turned out to be untrue. It is difficult to conceive what would make a note “ all right,” to one who is seeking to purchase it, unless it is such a note as is collectable. Who would call a note “ all right” that could not be collected by suit, or that would not be paid at maturity, if the party making it, was able to pay ? The import of the words used, was that there was no defense to the note, and if purchased it would be paid at maturity, if the maker was able. This would make it “ all right,” and nothing short of this would have that effect. Had there been a suit pending on the note, between Brooks and Martin, and the latter had come into court and pleaded that the note was “ all right,” the court could not have refrained from giving judgment against him. Now, by his words, he puts in this plea before suit is brought, and the law will not permit him to withdraw it, after suit is brought. ■ These words amount to an admission, that Martin can not take back without inflicting an injury upon Brooks, who had acted upon it. “ It is well settled,” says this court, in a former decision, upon a question very similar to this, “that admissions which have been acted on by others, are conclusive against the party making them, in all cases between him and the other person, whose conduct he has influenced. Nor is it material whether the admission is expressly made, or is to be inferred from the conduct of the party. And in the operation of
But besides this, it does not appear from the facts embodied in the bill of exceptions, that Martin was under any legal obligation to give up the horse, which was the consideration of the note, upon the demand of the administrator of Goff’s estate. It is not shown, that there were any children or other distributees of the estate of Goff, deceased, except the widow. Mrs. Goff was entitled to. one work horse out of the estate of her deceased husband. That is, one work horse which belonged to his estate. And as soon as she made her selection of such horse, it became absolutely her own property, as much so as her wearing
The learned judge, therefore, erred in both his charges, as'shown in the bill of exceptions. The judgment in the court below is reversed, and remanded for a new trial.