6 Div. 706. | Ala. | Jun 6, 1918
The Birmingham Trust Savings Company sued the Fruitticher Electric Company in eight counts, in each of which plaintiff counted upon a different promissory note executed to the Turner Electric Supply Company and indorsed to plaintiff by the last-named company. Each count of the amended complaint alleged, in effect, that by the Turner Company's indorsement plaintiff became and still was the holder in due course of the note therein declared upon.
Demurrers were sustained to a number of defendant's special pleas, and we find it necessary to state our conclusion with respect to these several rulings, and we note, as important in the consideration of some of them, that each and every one of these pleas was amended (transcript, p. 13) so as to show that before said indorsement plaintiff had actual knowledge of the facts alleged.
Plea 13 contained different elements, but the main idea of this plea and of pleas 9, 10, 11, and 12, each addressed to the counts severally and separately, seems to have been to defend on the ground that plaintiff was not a purchaser for value for the reason that the sole considerations moving to the Turner Electric Company for its indorsement of the notes in suit were credits given upon the books of the plaintiff, and that at maturity of the notes and upon nonpayment thereof the account of the Turner Electric Supply Company with plaintiff was charged with the full amounts of said notes. The defense thus attempted — it is variously labeled in the several pleas, but came to the same thing in all of them — was not available in the absence of an allegation that at or after the maturity of the notes held by plaintiff, and at the time the notes were charged back to the Turner Electric Supply Company, that company had funds to its credit with plaintiff applicable in satisfaction, in whole or in part, of the notes. But the demurrer did not take this point against the pleas, and under the statute (Code, § 5340) our consideration is limited to the grounds of demurrer which are distinctly stated. True, the pleas allege that the sole considerations for the assignments of these notes were credits given, and a mere credit does not constitute a purchase for value (Sherrill v. Merchants
Mechanics T. S. Bank,
By its last amendment of plea 14, as appears from the amendment shown at the bottom of page 13 of the transcript, that plea was left without averment of facts. No error can be predicated of the ruling which, by sustaining a demurrer, eliminated this so-called plea from the record. Or, if appellant would insist upon error in the ruling against its original plea 14 — the assignment does not say which ruling it intends to draw into question — it can take nothing thereby, for the reason that proof of the identical facts might have been made under plea X, on which issue was joined. Appellee cites authorities (Jordan v. Collins,
We take the gist of plea 16 to be that defendant was an accommodation maker of the notes sued on, of which fact plaintiff had knowledge, and that "after the time plaintiff obtained said knowledge said Turner Electric Supply Company had on deposit with plaintiff sufficient money or funds of Turner Electric Supply Company with which to fully satisfy said note, which said money was subject to the payment of said note." This plea was designed to assert the proposition of Tatum v. Commercial Bank Trust Co.,
Other assignments of error need not be considered, since it is clear that the pleadings will be recast.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.