119 Ala. 64 | Ala. | 1898
— The appellant, plaintiff in the court below, sued John W. Hall and H. P. Wisdom upon their commercial promissory note, payable at the Florence National Bank, Florence, Alabama, received by plaintiff in due course of trade for a valuable consideration before maturity, and without notice of any defense. The case was tried by the court without a jury, upon defendants’ special pleas of payment numbered two and three, and rendered judgment for the plaintiff. There was a demurrer to each of these pleas, which was overruled by the court, and then replication by plaintiff, to which replication the court sustained a demurrer. The ruling of the court upon the several demurrers, and the judgment upon the evidence, upon issue joined, are assigned as error. When a case is tried by the court, upon parol evidence, the rule which prevails in this State “requires us to indulge all reasonable presumptions in favor of the decision of the court upon questions of fact, and not to reverse it, unless clearly satisfied that it is wrong.” Jones v. White, 112 Ala. 449; Woodrow v. Hawving, 105 Ala, 240. The testimony of the witness, Hall, and of Tice, the cashier of the Florence National Bank, sustain the
We are of opinion that these facts constitute a payment in money, and do not raise the question argued, that an agent has no authority to receive a check in pay
Section 5242 of the Revised Statutes of the United States reads as folloAvs: “All transfers of the notes, bonds,.bills of exchange, or other evidences of debt owing
It is the opinion of the court that the facts set up in the plea under consideration, independent of the statute just cited, show a payment of the note, but that the statute is prohibitory and peremptory, and that a legal payment could not be made out of moneys deposited to his general credit, after insolvency of the bank, or in contemplation of insolvency, and that there was no legal payment of the note. It is the opinion of the court, that Hall’s ignorance of the financial condition of the bank or that it contemplated insolvency made no difference as to the legality and invalidity of the intended payment. National Savings Bank v. Butler, 129 U. S. 223. The court therefore holds that the replication presented a complete answer to the plea, and that the trial court improperly sustained the demurrer.
The writer is of opinion that if Hall, in ignorance of the condition of the bank, in the usual course of business, deposited the money in bank to his credit, and on Saturday preceding the Monday gave instruction to the cashier to so apply it, and he further deposited other money on the-morning of the closing of the bank, and went to the bank while it was doing business as usual to pay the note, and was-informed by the cashier that the money had been so applied, and exhibited the note can-celled and stamped “paid,” and it was subsequently so entered up under the direction of the receiver and the note surrendered to Hall, that the payment was valid, at least as to the plaintiff, whatever may be the rights of the receiver in the premises. The effect of the payment
Under the view taken by the court, the case must be reversed and remanded.
Reversed and remanded.