63 So. 741 | Ala. Ct. App. | 1913
It is elementary, of course, that tbe indorsee of a negotiable promissory note who seeks protection as a bona fide purchaser against secret defenses set up by tbe maker, in a suit on tbe note by tbe former against the latter, is required to plead it. Of course, it is allowable, when not objected to (Com. Bank v. King, 107 Ala. 484, 18 South. 243), though certainly it is not proper, and is neither wise nor logical, for tbe
Hence the orderly way, and the way which the law recognizes as the proper one, for the plaintiff in such case to claim protection as a bona fide purchaser, is to allege the facts which constitute him such, in a special replication to defendant’s special pleas, should any be filed. Of course, he may also file a general replication, which would put on defendant the burden of proving his special pleas (Code, § 5338); but the special replication mentioned is in confession and avoidance, and the plaintiff succeeds if he proves it, notwithstanding the defendant may have also proved his special pleas upon which issue was joined, unless he also proves that plaintiff had knowledge or notice of such defenses at the time of his purchase or payment. Such a replicátion, in order to be legally sufficient, must aver that the plaintiff purchased the note in good faith, for value, before maturity, in the ordinary course of trade, and without notice of any defenses existing against it; and it must appear from the allegations of the replication, either by setting out the note in hsec verba or by proper descriptive averments, unless it has already so appeared in the declaration, that the note is a negotiable note— that is, one governed by the commercial law — and that the plaintiff is the indorsee of the note, if it be one payable to order, and that he is the bearer or holder, if it be one payable to bearer. — 14 Ency. PI. & Pr. 518, 525.
The rule as to the order and burden of proof with respect to the bona' fide purchaser is that, after
These rules as to pleading and as to the order and’ burden of proof, established by the authorities cited, are as applicable now as before the enactment of the uniform negotiable instrument law as found in sections 1958 to 5138, inclusive, of the Code. Section 5011 of that statute, contrary to plaintiff’s insistence, is in entire harmony with these decisions as to the burden of proof of a bona fide purchaser, and is merely declaratory, in that particular, .of the law existing on the subject, not only in this state at the time of the passage of the act, but obtaining generally throughout the states as a rule of commercial law. The section mentioned (5011) provides: “Every holder is deemed prima facie to be a holder in due course, but, when it is shown that the title of any person who has negotiated the instrument is defective, the burden is on the holder to
In the present case, which was a suit on such a note by the indorsee of the payee against the maker, the complaint, being brief, we set it out here, as follows: “Plaintiff claims of the defendant $100 due by promissory note made by him on, to wit, January 28, 1911, and payable 90 days after date to Wayne Oil Tank &
Upon the overruling of his demurrer to defendant’s plea of a want of consideration, the plaintiff filed a special replication, attempting again to set up that he was a bona fide purchaser or holder in due course of the note sued on. The replication probably meets the requirements of good pleading in this particular except that it nowhere appears therein that the note sued on was a negotiable instrument, nor did it so appear from the prior pleadings, as before pointed out; and except, further, that it nowhere appears whether the note was payable “to bearer” or “to order,” nor how it was “transferred” to plaintiff, whether by indorsement and delivery or by delivery merely. However, the replication was not demurred to, and the case will be passed on as presented; since parties are at liberty to try their cases upon immaterial pleas or replications if they choose.
The court, by consent of parties, tried the case and ■ Tendered judgment without the intervention of a jury; and from this judgment, Avhich was in favor of the defendant, the plaintiff appeals and assigns its rendition as error — -being the only assignment here, other than the one we have hereinbefore noted and disposed of.
The note, Avhich appears to be a negotiable instrument executed by defendant and payable to the order of Wayne Tank & Pump Company, and bearing their indorsement, was introduced in evidence by the plaintiff, without objection — which met the burden imposed on plaintiff by defendant’s plea of the general issue. One of the suggestions of plaintiff’s counsel here made, in support of their contention that the court erred in rendering judgment for defendant, is that the evidence of
On the subject of this alleged purchase, all the plaintiff’s witnesses testify in substance, without dispute, that the Wayne Oil Tank & Pump Company, the payee of the note sued on, did its banking business with the plaintiff, indorsee bank, and that this particular note was presented by said-payee before its maturity and, upon its being indorsed by them, the amount of it, less 25 cents deducted to cover cost of collecting, was passed to their credit on their deposit account at the plaintiff bank. It is well settled that, “where a bank discounts paper for a depositor who is not in its debt, and gives
It is true that the plaintiff’s witness Wentz, who was cashier of the plaintiff bank, further testified that, at the time the plaintiff “accepted the transfer and delivery of said note, plaintiff was creditor of the Wayne Oil Tank & Pump Company [the payee of the note] in the sum of $15,000.” But it is not shown that the proceeds of the discounted note were accepted in payment or part payment of that debt. — Mayberry v. Morris, 62 Ala. 113. That debt, for aught to the contrary appearing in evidence, may have existed in the shape of a note or mortgage, while it appears that the proceeds of the discounted note were credited to the deposit account of the said payee, with a right on its part, presumably (the contrary not appearing), to check it out as it saw fit. So it appears that the plaintiff must fail in meeting the burden imposed on it of showing itself a bona fide purchaser of the note, unless it offers satisfactory proof establishing the fact, if it be a fact, either that the deposit account of the payee was overdrawn at the time of the discount of the note and of the credit given it on its deposit account, so that the discount would operate
The judgment of the lower court, finding for defendant, is affirmed.
Affirmed.