Holmes v. Bank of Fort Gaines

120 Ala. 493 | Ala. | 1898

TYSON, J.

The original complaint in this case was amended to cure defects pointed out in the demurrer assigned to it. To the amended complaint the defendant interposed seven pleas. It is not necessary to consider all of them as only two of them, numbered two and three, were demurred to. The record of-the judgment entry recites that the demurrer to plea number three was confessed by defendant and it appears that defendant filed additional pleas numbered two and two and one-half containing substantially the same language as original plea number two, to which no demurrer was interposed. There was, therefore, no injury done defendant by the action of the court in sustaining demurrer to this plea.

" To the pleas numbered 2, 2£, 3, 4, 5 and 6 the plaintiff replied specially that the note sued on is payable in money to the order of one Rumbley at the Bank of Port Gaines, Ga., and plaintiff purchased it in the usual course of business for valuable consideration before maturity, without notice of any defense to said note or of any defect or infirmity therein. The objection taken to this replication by demurrer was that it fails, to allege the note sued on is commercial or negotiable paper'. It nowhere appears in the complaint or pleas where the note, the foundation of the suit, was executed and delivered by -its maker to the payee. It is averred in the replication that it is payable in the State of Georgia, and the complaint shows that the plaintiff is a corporation chartered under the laws of Georgia and doing business in that State. In the absence of an averment showing what the statute laws of that State are, relating to the negotiability of notes, we must presume that they are governed by the common law.—1 Dan. Neg. Inst., §891; Dun v. Adams, Parmeter & Co., 1 Ala. (N. S.) 527; Beal & Bennett v. Wainwright, Shields & Co., 6 Ala. 158; Evans v. Clark, 1 Port. 388. At common law every note containing an unconditional and absolute promise to pay money only to another or his order at a fixed time, specifying the sum of money to be paid was negotiable. 1 Dan. Neg. Inst., § 28; Byles on Bills [*5] and note; 2 Am. & Eng. Encyc. of Law, 318-322. It was not required that any place of payment should be named, but if one was designated it did not affect its negotiability. 1 Dan. Neg. Inst., § 90; 2 Am. & Eng. Encyc. of Law, 328, and authorities cited in note 6; Beal & Bennett v. Wainwright, Shields & Co., supra. Testing the replication by these principles and construing it in connection with the pleas it purports to answer and the averment of the complaint that the note sued on was executed by the defendant on the 28th day of October, 1896, to H. W. Rumbley in the sum of $135, due March 10th, 1897, and transferred by him to the plaintiff, we hold that it is not subject to the demurrers.

Plea numbered 7 was in Code foiun of plea of non est factum, and to it plaintiff, as appears from the judgment entry, filed two special replications ; only one of them, however, is set out in the record. This replication avers that defendant executed the note sued on and that the plea is based upon an alleged material alteration in the note, and for the purpose of avoiding the legal <= effect of the alteration, avers that said note was payable in money at the Bank of Fort Gaines, Ga., and was purchased by. plaintiff in the usual course of business for a valuable consideration without notice of any alteration, defect or infirmity in said note, or defense thereto ; that no material alteration was made by plaintiff in said note or any one authorized by him ; there was nothing on the face of the note reasonably calculated to excite suspicion óf a careful man; and that the maker had left room in said note for an alteration to be made therein without defacing it. There were some six grounds of demurrer assigned to this replication. All of them except the sixth raise the sufficiency of the allegation of the material alteration, such as that its character is not averred, what alteration was made, when made, by whom made, and whether made before or after plaintiff became the owner of the note. The gist of the replication is not that a material afteration was made in the note ; but if such was the case, the plaintiff acquired it before maturity for value, without any notice of such alteration, that nothing appeared upon its face to arouse his suspicions, and that its maker had left room for an alteration to be' made without defacing it. The averment as to the material alteration very clearly appears to be a statement of the plead'er of a fact relied upon by the the defendant to support his plea of non est factum: The sixth ground of demurrer was that it is not averred that the alteration was-not made by plaintiff. We cannot conceive how the replica-ti-on could have been more explicit on this point. It expressly avers that it was not made by plaintiff or any one authorized by him, and we may add that the only reasonable inference to be deduced from the replication is that the alteration, if made, was made before the note was purchased by plaintiff. The demurrers were properly overruled.—Winter & Loeb v. Pool, 104 Ala. 580, and authorities cited.

The only remaining question is, was there error in giving the general affirmative charge for plaintiff, and refusing it to defendant? The evidence is without dispute that defendant executed to H. W. Rumbley the the note sued on dated at Wesley, Alabama, October 28th, 1896, in the sum of $135, payable to his order at (the Bank of) Port Gaines, Ga., due March 10, 1897., containing a waiver of exemptions as to personal property under the laws of the State of Alabama. That on November 14, 1896 for value, the said Rumbley transferred the note, on the back thereof, and delivered it to the plaintiff at his place of business in Port Gaines, Ga., waiving demand and notice of protest, and waiving his right of exemptions in the indorsement. The cashier of plaintiff corporation made the transaction with Rumbley, and he testifies that no change or alteration was made in the note at the time he purchased it and none has been made since. That he paid $124.20 for it, and the note was at the date of the purchase payable at ‘ ‘the Bank of Port Gaines, Ga." That no loan was made by plaintiff to Rumbley, but the rate of discount was about 2 per cent, per month, and “that anything in the State of Georgia was usury which was over 8 per cent, per annum.” The defendant testified that he signed the note, but that the words “Bank of" were not in it when he signed it, and that it read “payable at Port Gaines, Ga." We have stated all the evidence that is material to the point under consideration. The defendant having proven without dispute that these words were inserted, this destroyed the validity of the note, and this is true whether its negotiability was governed by the laws of Alabama or the common law.—2 Dan. Neg.Inst., § 1378; Byles on Bills, 319., note 2; Winter & Loeb v. Pool, 100 Aa. 503.

This court said in Winter & Loeb v. Pool, supra, “that upon proof that the paper had been altered, the burden would be cast upon the plaintiff to overcome its presumed invalidity.” The plaintiff’s counsel in this case in the framing of the replication to the plea of non est factum recognized this doctrine. An inspection of the original note, which has been properly certified to us, shows conclusively that if the words “Bank of” were not in the said note when executed by defendant, that there was a careless execution of it by leaving room for this insertion to be made without defacing said note or exciting the suspicions of a careful man. This taken in connection with the testimony of the cashier of the bank, proved without dispute the facts as alleged in plaintiff’s replication, and shifted the burden of proof upon defendant to show that plaintiff had notice of the alteration prior to or at the time of the purchase of said note by it, which burden defendant failed to discharge. It appears that plaintiff purchased the note at a profit greater than the interest would have amounted to, at the rate of 8 per cent, per annum, this being the legal rate of interest fixed by the laws of Georgia. This did not affect its bona fieles as a holder.—Capital City Ins. Co. v. Quinn, 73 Ala. 558, and authorities there cited. The authorities relied on by appellant bearing upon this proposition are discussed in Capital City Ins. Co. v. Quinn, supra, and distinguished from that case and the one under consideration. See also Orr v. Sparkman, and authorities therein cited, ante, p. 9.

There was no error in giving the general affirmative charge for plaintiff, and therefore no emor in refusing the charge requested by defendant.

Judgment affixuned.