114 Ala. 39 | Ala. | 1896
The assignments of error relate to all the rulings of the court below, on the demurrers to the original and amended complaints, but the argument of counsel for the appellants is devoted exclusively to the rulings on the demurrer to the third, or last amended complaint, and it is to these only we will direct consideration.
The abstract states that this count describes the note, as in former counts. Adopting a liberal interpretation of the statement, we have referred to the former counts, as set out in the abstract, for a description of the note, and of the indorsement or assignment thereon, the foundation of the suit. These are, perhaps, stated with more of fullness, in the first amended complaint, than in any of the other counts. That count or complaint, purports to set out in haec verba the note, and the indorsement or assignment thereof by-the defendant. The note bears date May 20, 1890, is an' ordinary non-negotiable promissory note, signed by C. M. Porter as maker, for the payment of three hundred and twenty dollars to the defendant, one day after the date thereof, containing a waiver of exemptions, and a stipulation to pay attorney’s fees for collecting. The endorsement or assignment thereof, made by the defendant, was made, it is averred, in November, 1892, and is in these words : “I hereby transfer the within note to Hop Caulfield and wife, for a valuable consideration.”
The general indorsement or assignment of paper not negotiable according to the law merchant, like the indorsement of paper negotiable, imports a contract or engagement, in its nature and essence conditional; and the conditions upon which it may be converted into an
Without an averment of suit against the maker, by the averment of facts and transactions occurring between the parties, the purpose is to excuse the failure to sue, bringing the case without the operation of the seventh sub-division of section 1780 of the Code. The words of the sub-division are : ‘ ‘When, by any act or promise of the indorser, the plaintiff is induced to delay bringing such suit.” Facts and transactions occurring before the expiration of the time for bringing suit, are commingled in the complaint, with facts and transactions of subsequent occurrence; they are, however, readily distinguishable. The death of the maker, as the complaint avers, happened about May, 1893. Courts take notice of the time of the holding of other courts prescribed by the statute, and we, therefore, know that the first term
As recited in the complaint these facts and transactions are, that one of the plaintiffs said to the defendant, that, “she did not believe anything could be made out of C. M. Porter, and defendant said he did not expect them to try to make anything out of C. M.' Porter ; that he did not want them to look to C. M. Porter for the payment of the note at any time ; and requested them never to try to make it out of the maker of the note under any circumstances, but that he wanted them to agree to do him the favor of waiting for the money until C. M.' Porter died, and let Hop Caulfield try and see if Mrs. C. M. Porter would not pay it out of the insurance money that he understood she was to receive when C. M. Porter died; and plaintiff agreed to do that.” If the paper was a negotiable promissory note, and the inquiry was, whether the indorser had waived presentment to and demand of payment from the maker, and notice of the default, the solicitation of the indorser that the note should not be presented to the maker for payment, would have constituted a waiver, rendering the indorser liable, as if these prerequisites to his liability had been observed by the holder. This is upon the obvious principle, that as the presentment, demand and notice are intended for the benefit of the indorser, he may waive them, as parties to contracts may waive or renounce the benefit of
A waiver of suit by the indorser or assignor of paper not commercial, unlike the waiver of demand and notice by the indorser of commercial paper, must be in writing ; the statute is clear, unqualified, and may properly be said to be a prohibition of all merely verbal waivers. “The time for bringing the suit, as required by the preceding sections, may be extended, or waived by the consent of the indorser or assignor in writing, signed by him.” — Code of 1886, § 1779. Originally, the statutory requirement was limited to cases in which the amount due did not exceed fifty dollars, of which justices of the peace had jurisdiction. Its words were, “unless the indorser consent in writing, that further time may be given to the maker or obligor.” — Clay’s Dig. 583, §§ 12-15. The construction of the statute, conforming to its words, was, that it was without application, when the amount due exceeded fifty dollars, and for the recovery, courts of record only had jurisdiction ; and the statute being out of the way, as was said, “there was no rule of law, or policy, to prevent a verbal consent from binding the indorser.” — Litchfield v. Allen, 7 Ala. 779. The present statute comprehends all indorsements or assignments, without regard to the amount due; and the change of phraseology from that of the former statute is marked, signifying the intent to render unavailing, all verbal waivers of suit, or extensions of the
The sections of the Code, 1778-1782, had their origin in an act passed by the General Assembly in 1828, and the judicial construction it had received. As declared in its preamble, the evil the act of 1828 was intended to cure, was the public injury resulting from the uncertainty of the decisions of the courts, as to the . proper time of making demand of payment of the payers of paper, negotiable and not negotiable, in the sense of the law merchant. As to paper of the latter character, it dispensed with presentment for payment to the maker, and notice to the indorser or assignor of non-payment,' substituting for them suit against the maker, in accordance with its provisions. — Clay’s Dig. 382; 1 Brick. Dig. 278, § 378; Mobile Savings Bank v. McDonnell, 83 Ala. 595. In their present form, embodying the act of 1828, and the judicial construction it had received, they were introduced into the Code of 1852, (Code of 1852, §§ 1543-48) ; and have been preserved and re-enacted in that form, -in all the subsequent revisions or codifications of the statutes. They are to be regarded as a single statute, and it is merely elementary to say, that they must be so construed as to render them harmonious in operation, if possible, not placing one partin antagonism to another. — Brooks v. Mobile School Commissioners, 31 Ala. 227. The seventh subdivision of section 1780, was not introduced, as a separate, distinct legislative enactment. It was enacted solely as a new, additional excuse, relieving from the necessity of suit against the maker. A construction which would give it any other field of operation, would place it in antagonism to other parts of the statute, and cannot be just or reasonable. If the legislative intent had been that, in any event, it should operate a modification or qualification of the important requirement of section 1779, that a waiver, or extension of time for bringing suit, must be in writing, signed by the indorser or assignor, it is the fair and just presumption, that the intent would have been directly and clearly expressed. The act or promise inducing the delay of suit, if it is not in writing, must not have only the elements of a waiver, or the extension of the time of bringing suit,'displacing the requirements of section . 1779 ; that would place parts of the statute in antagonism.
The result is, we find no error in the sustaining of the demurrers to the complaint, and the judgment of the court below, must be affirmed.
Affirmed.