64 So. 90 | Ala. | 1913
Lead Opinion
The undisputed evidence shows that one Yeager, acting for the attorney of Hartsell & Day, as well as one Snell, who had claims against one of these defendants, G. F. Roberts, who was the son of one and brother of the other defendant, approached the said defendants armed with a warrant of arrest for said G. F. Roberts, said warrant being from Marshall county and'indorsed by a justice of the peace of Etowah county, and led them to believe that he would have to execute said warrant of arrest unless said'claims were secured, and assured them that, if all of said defendants would execute the note and mortgage in question, he would not arrest G. F. Roberts, and that he would never be prosecuted for the offense covered by the warrant. This conduct was contrary to public policy and rendered the transaction null and void, and the trial court could well have given the general charge for defendants, and, this being the case, any errors, if any there were, in ruling upon the pleading or requested charges were without injury.
The undisputed evidence established the substance of pleas B and 6, as amended, and as to which there was no demurrer insisted upon or acted upon by the court, and, this being true, the defendants were entitled to the general charge. The law will not enforce a contract procured upon a guaranty that a pending prosecution will be dismissed and that the defendant will be held harmless. — Treadwell v. Torbert, 119 Ala. 279, 24 South. 54, 72 Am. St. Rep. 918; Wadsworth v. Dunnam,
This plaintiff cannot avoid the result upon the theory of being an innocent purchaser of a commercial paper. In the first place it is questionable as to whether or not one can be an innocent purchaser of paper which is void as against public policy. Again, the complaint does not describe the note as commercial paper, and, even if it did, the note was made to the firm of which the plaintiff was a member and who is the assignee of the interest of his copartner.
Neither is the plaintiff in a position to question the authority of Yeager or to escape results because the .warrant in question was sworn out under the Snell claim. The transaction was inseparable, and the note and mortgage were procured by Yeager, and when the plaintiff accepted them and brought suit to collect them, he ratified the authority of Yeager to procure them and is bound by his conduct when getting them executed.
The judgment of the city court is affirmed.
Affirmed.
Rehearing
UPON REHEARING.
Counsel, upon application for rehearing, contend that the principle laid down in the foregoing opinion is opposed by the case of Bibb v. Hitchcock, 49 Ala. 468, 20 Am. Rep. 288. This may be true, but said case was expressly repudiated, on this point, in United Fidelity Co. v. Charles, 131 Ala. 658, 31 South. 558, 57 L. R. A. 212, and Folmar v. Siler, 132 Ala. 297, 31 South. 719.
The application is overruled.