First National Bank v. Dawson

78 Ala. 67 | Ala. | 1884

STONE, C. J.

Both Dawson and Fellows testified, that Dawson’s indorsement was placed on the notes, with the express agreement and limitation that Fellows was not to negotiate or use it, until' he procured two other solvent co-sureties, or indorsers, to be jointly bound with him, Dawson, as common sureties for Fellows. It'was Fellows’ debt, and the other parties were accommodation indorsers. It is not, and can not be controverted, that if the bank acquired this commercial paper in due course of trade, for a valuable consideration, and without notice of the limitation put on Fellows’ use of it, this defense would be unavailing. — Herbert v. Huie, 1 Ala. 18; Saltmash v. Tuthill, 13 Ala. 390; Allen v. Maury, 66 Ala. 10 ; Capital City Ins. Co. v. Quinn, 73 Ala. 558; Butler v. U. S., 21 Wall. 272; Danl. Neg. Ins., § 790; Ib. §§1502-3; Jones R. R. Sec., § 207; Murray v. Lardner, 2 Wall. 110.

On the question whether the bank, before it purchased the paper, had notice of the restriction placed on its circulation by Dawson, two witnesses were examined, arid their testimony was in direct antagonism. Fellows testified he gave such notice to Dr. Baldwin, president of the bank : Baldwin testified lie did not. This presented a palpable issue of fact, on which the jury .was required to pronounce. On this issue of notice ml non, the burden of proof was on the defendant. — Carpenter v. Devon, 6 Ala. 718; Carroll v. Malone, 28 Ala. 521; Walker v. Palmer, 24 Ala. 358; Danl. Neg. Sec., § 819 ; Thompson v. Duncan, 76 Ala. 334. The fourth charge asked by defendant, and given, is in the following language: “ When valid defenses are shown to exist against negotiable paper, if the holder would protect himself against them, he is required to show that in good faith, for a valuable consideration, without notice of its infirmities,- he acquired the paper before maturity.” This charge improperly places the burden of disproving notice on the shoulders of the plaintiff, and for that reason should not have been given. The City Court erred in this.

We think it clear, that the defense set up in the fourth plea is an answer to the action. If Dawson, when he intrusted his indorsement to Fellows, imposed the restrictions on its use which his testimony tends to prove; and if the bank had notice of such restrictions, before it purchased the note, then the purchase was at its peril; and the three indorsers having placed their names one after another, without anything to denote a joint liability, showed a prim.a facie case of several, consecutive liability, which was notice to the bank that, without more, the condition had not been complied with. Purchasing in such circumstances, good faith required the bank to see to it that defendant’s confidence was not abused. On the other hand, if it be shown that Gaston and Marks did indorse with an agree-' ment to be equally bound with Dawson as co-indorsers, then fhe latter’s defense falls to the ground; for all §uch promises are several as well as joint (Code, § 2905), and may be sued severally as well as jointly. — Steed v. Barnhill, 71 Ala. 157,

Reversed and remanded.

Clopton J., not sitting.