66 Ala. 432 | Ala. | 1880
The plea of non est factum, interposed by Catherine Connerly, was matter of defense purely personal. In actions ex contractu, if one of several defendants plead matter in his particular discharge, not directed to the merits, it is the right of the plaintiff to enter a nolle-prosequi, or discontinuance as to him, without producing a discontinuance as to the other defendants. — 1 Chitty’s Pl. 604; Mock v. Walker, 42 Ala. 668; Reynolds v. Simpson, at the last term,
The evidence offered of the solvency of the maker, and of the indorsers (the payees), when the notes became due, and of the ability of the maker to have protected himself from loss, if he had been then notified the notes were unpaid, to say the least of it, priyia facie, was irrelevant, and properly excluded. If the fact that the notes were accommodation paper, made without consideration moving from the payees to the maker, and that as between them the duty of making payment rested on the payees, would cast on the holder the necessity of giving notice of non-payment to the maker, it should have been shown that he knew, at the time of its maturity, the character of the paper, and of the relation subsisting between the maker and the payees. Men can not, without their knowledge, be subjected to duties of this kind, and to loss, if they are not observed. There was no evidence tracing to the holder any notice, until after the maturity of the paper, and the suspension of business by the payees, that it was not precisely what on its face it purports to be — . an unconditional promise, on a valuable consideration, for the payment of a specific sum of’money, at an appointed time and place ; and every holder for value had the right of so regarding and dealing with it. Though payable at particular places, presentment there was not a condition precedent, or necessary to fix the liability of the maker. If he was there in readiness to meet them, or if there he had deposited funds to meet them, a matter of defense might arise, if loss was to ensue from the failure of the holder to make prompt presentment and demand of payment. But, that not being the fact, the failure to demand payment would not lessen his liability.—Wallace v. McConnell, 13 Peters, 136; Irvine v. Withers, 1 Stew. 234; Evans v. Gordon, 8 Porter, 142; Montgomery v. Elliott, 6 Ala. 701.
It is not matter of dispute, that the notes were in fact what is known as accommodation paper; a mode adopted for a
Nor would the title of the holder be affected, because.he may have acquired the paper after its maturity. When accommodation paper is not made for a specific purpose; when there is, by the understanding of the parties, no restriction upon its use; there can be no inference, or presumption, that it is to become valueless, or that the authority of the party intrusted with its use ceases, if it is not negotiated before its maturity. Negotiation after maturity may serve the very purpose of its making — in that way only, it may be, the intended loan of credit can be made effectual; and certainly, putting in circulation accommodation paper, after its maturity, can not be esteemed fraudulent, or malafides attributed to the party who has the right of using it.—Charles v. Marsden, 1 Taunt. 224; Brown v. Mott, supra; Lincoln v. Stevens, 7 Metc. 529.
When Oonnerly consented to make the notes, for the use and benefit of the Weavers, and to intrust them with their negotiation in the transaction of their business as'merchants, he placed himself in the front, and must abide' the consequences. To every holder for value, to whom no fraud can
The several instructions given on request of the plaintiff, are free from error prejudicial to the appellant. The good faith of the appellee, in the acquisition of the paper, was undisputed; nor was it insisted, the payees were guilty of bad faith in its negotiation. The point of contention was, whether the appellee was a holder for value, protected against the want of consideration as between the maker and the payees. These instructions place the holder in the situation in which he would stand if this were not accommodation paper, made for the purpose of enabling the payees to obtain credit from third persons — as if there had been a valuable consideration intended, which had no existence, or which had failed, or an illegal consideration, or there was fraud infecting the transaction between the maker and the payees. The weight of authority seems in favor of the proposition, that if accommodation paper is taken as a security for a preexisting debt, or on■ any other valuable consideration, the. holder, acquiring it in good faith, may enforce it, though there was a want of consideration between the original parties. — 2 Am. Lead. Cases, 242. Whether the rule could- be adopted here, without infringing upon the rule, so long' adopted that it can not be departed from without disturbing transactions it may have influenced, that a holder of negotiable paper as collateral security for a pre-existing debt is not a bona fide holder for value, protected against equities and defenses existing between prior parties of which be had no notice, we do not consider. This is conceded to the appellant by these instructions, which assert, in other respects, no more than well settled rules of commercial law. All holders of negotiable paper, acquiring it before maturity, in the ordinary course of business, are presumed to have acquired it on a valuable consideration. The rule here prevailing is, that when it is shown there was illegality, want or failure of consideration, or bad faith in giving it circulation, the holder must prove that he acquired it on a valuable consideration, before maturity, or his title can not be protected.—Ross v. Drinkard, 34 Ala. 434; 1 Brick. Dig. 276, § 356. And whenever it is shown that the holder acquired it before maturity,
It is urged, however, that as there was evidence tending to show that the notes were taken as collateral security for particular debts contracted by the payees, which had been paid, there was a just defense against them, and the instructions .are erroneous, because they do not direct, but divert the attention of the jury from this phase of the case. It is obvious this question was not presented to, or considered by the -Circuit Court; but the whole defense was limited to the point, whether the appellee was a holder of- the notes in good faith, and upon a valuable consideration; and for this reason, it •can not now be considered. There was evidence in support of the instructions as given, and evidence in conflict with that, which tended to prove the notes were taken and held as security for particular debts. It was the right of the appellee to request instructions based on that view of the evidence favorable to a recovery; as it was the right of the appellant to request instructions based on that view of the evidence which would have defeated a recovery. Instructions, .given on either hypothesis, are not objectionable, because they refer to, and are based on a part of the evidence only. .Any injury apprehended from them must be avoided by the request for instructions adapted to each and every hypothesis the evidence tends to establish.
We have examined and considered every cause of error •assigned, and can not find that they warrant a reversal.
The judgment is affirmed.