66 So. 588 | Ala. | 1914
In an action against two or more persons as joint makers of a promissory note, which is, under our statutes, a joint and several obligation, judgment on verdict may be rendered against one of the makers and in favor of the others.—Burns & Co., v. Moore & McGee, 76 Ala. 339, 52 Am. Rep. 332; Code of 1907, § 2504.
2. The defendant, appellant here, Jackson, pleaded, in substance, that his signature to the note had been procured by the fraud of its payee, Mason. The plaintiff, among other replications to the above plea of the defendant, filed the following: “The plaintiff pleads further and says that the note on which this suit is founded was before maturity, indorsed by the payee thereof to the Farmers’ & Merchants’ Bank to secure a bona fide loan of money then and there made by the said bank to the payee of said note; and, without notice to the said bank of any defense thereto, that the payee of said note at the time the loan was made and before the maturity of said note authorized the said bank to sell the note at public or private sale for the satisfaction and payment of said loan, if said loan was not paid when due, and after due notice to the payee of said note after default in the payment of said loan by the payee of the said note, his note was sold to the plaintiff and the proceeds of said sale were applied on said loan.”
The plaintiff filed, in addition to the replication above set out, another replication showing that it was a holder, in due course, of said note, and that replication, for the reasons above set out, was not subject to the defendant’s demurrer.
3. In this case there were three makers of the note. One of the makers filed, among other pleas, a plea of non est factum. One of the makers filed no plea, and the appellant, the other maker, filed the plea to which we have above referred. The plea of non est factum cast the burden of proving the execution of the note by the defendant, who filed the plea, upon the plaintiff. The plaintiff offered no proof as to the execution of the note by the defendant who filed the plea of non est factum. In fact, he did not offer the note in evidence as to hér. As there was, then, no evidence before the jury as to her liability on the note, the court properly gave affirmative instruction in her behalf to the jury, and there was a verdict and judgment in her favor.
4. The fact that the bank, to whom, in the due course of business, the payee of the note transferred the note, knew that the payee was in trouble,' or had been in trouble, with an insurance company about the misapplication of some of its funds received from insurance notes, was of no relevancy in this case. No insurance company is laying any claim to this note because of its misapplication. The plaintiff bought this note from
Affirmed.