66 So. 88 | Ala. | 1914
Appellee sued appellant and a number of others on a written instrument, in form a promissory note, but in the complaint denominated a “bill single.” With this exception the complaint is in Code form, for an action by the payee against the several makers of a promissory note.
Several of the defendants, alleged makers, were not served, and as to these the plaintiff discontinued, as is authorized by section 2502 of the Code. As to this there was no error nor injury of which this appellant can complain. The other defendants served, than Long, failed to appear and defend, and judgment by default was entered against them; and the case proceeded to trial as against defendant Long. It appears that some of these defendants, against whom judgment by default was rendered, had not been properly served, but as to this there was no reversible error nor error of which Long could complain.
This error can be corrected in the trial court on motion, or in this court, without remanding the cause, if the judgment can be otherwise affirmed, at the cost of the appellant.—Neff v. Edwards, 81 Ala. 246, 2 South. 88.
There was no discontinuance of this cause by the talcing of judgment by default against those who did not appear, and proceeding to trial as against the others.
In such case the judgment by default is, in its nature, interlocutory, to await disposition of the case as
The defendant Long interposed several pleas, including that of non est factum; and demurrer was sustained as to all except the plea of non est factum.
Plea 7 presented a good defense to the instrument; that is, if the facts alleged in the plea were true, the defendant Long was not liable, though he had signed the instrument sued on.
The action is by the payee against the makers of a note. The complaint did not show that plaintiff was a bona fide purchaser or holder of the instrument. The complaint shows an action only between the original parties to the contract sued on, and hence the defenses set up were availing to the defendant.
While the defendant is sued as a maker, the instrument on its face prima facie shows that the defendant is liable only as an indorser. Unless this prima facie presumption is rebutted, which may be done in this action, the plaintiff cannot recover.
The plaintiff in this action had the right to show that, although Long’s name was signed on the back of the note, yet he was in- fact liable as a maker, and signed the note as such and not as an indorser. On the other hand, the defendant had the right to show that he was not liable as maker, but liable, if at all, only as indorser.
It is made to appear in the case beyond dispute that defendant Long’s signature to the note was on its back; and therefore he was prima facie indorser and not maker; yet it is also conclusively shown that he signed before the note was delivered, and that the note had never been indorsed by the payee; that he still holds it and sues on it as the original payee; and that Long signed
“Sec. 833. In distinction from cases that hold such indorsement to be conclusively a joint making are those which hold it to be such presumptively. And this has been held to be the case prima facie, although the indorsement was expressly 'without demand and notice.' While such is the presumptive contract, parol evidence of a different intention is admissible between the immediate parties to the contract, but not against a bona fide holder of the note for value before maturity. And it has been held that his intention to contract as maker may be shown by parol in an action brought by him against the payee as a prior indorser, although the payee indorsed first. On the other hand, it has been held that parol evidence is requisite in order to render such an indorser liable either as maker or guarantor. And to hold him as maker, not only such an intention must be proved, but also the fact that his indorsement was at the inception of the note, and that he was privy to the original consideration. But an averment that he indorsed the note before its delivery to induce the payee to take it is sufficient, although, if such averment had been denied by the plea he might have been shown to be a guarantor. According to his intention, he has been held to be a maker or surety, a maker or indorser, a maker or guarantor, a maker, guarantor, or indorser. And, irrespective of presumptions, the meaning of such indorsement obviously becomes a question of intention, to be determined by the evidence in the case, although this statement is sometimes restricted to actions between the original parties and in the absence of indorsement by the payee, while, if such indorsement appears above that of the payee, it is said to*202 have been made presumptively to obtain credit with the payee and to belong, as such, prima facie to the original contract, sharing in the original consideration.”
“Sec. 841. * * * Parol evidence, where it is admissible, may show that such indorser is liable to the payee. So that the indorsement was made at the date of the note and intended as an original promise, and that the payee afterwards indorsed the note above such signature; or, on the other hand, that it was not contemporaneous with the note, and therefore not a joint promise, or was indorsed at the maturity of the note as a guaranty. Moreover, such indorser may show, at the suit of the original payee, that he had expressly refused to sign as joint maker, or that he had signed with the payee’s name blank under a special agreement, and that a diversion of the paper had been made contrary to the agreement, or that he had signed merely as a witness for the payee.”
It follows, therefore, that the trial court erred in sustaining demurrers to special plea 7 and in declining to allow defendant to introduce proof tending to show that he had signed the note as an indorser and not as maker. Strange to say, the court allowed plaintiff to testify that the defendant told him he signed the note as maker but would not let the defendant show that he signed it as indorser and not as maker. The note purported to be signed by the defendant Long as indorser and not as maker; and the defendant’s proposed evidence did not even tend to contradict the writing as did that of the plaintiff, which was received, but as we have shown above, this was only prima facie, and not conclusive.
Either party to the contract may show in what capacity the note was signed; that is, as maker, surety, indorser, guarantor, etc. This is one of the well-recognized exceptions to the general rule that parol evidence is
“The indorsement as written, although a necessary part of the contract, is not the whole of it. The entire contract is the writing as understood, delivered, and received, and is to be gathered from the language, usage, course of business, and relation of the parties. The rights of the immediate indorsee are affected by the actual contract with his indorser, but subsequent purchasers without notice are entitled to look to the indorsement for all that it appears to be on the paper. Parol evidence of the actual contract has on this ground been held to be admissible between the immediate parties or against subsequent holders with notice. And on the theory that a blank indorsement is a contract only so far expressed in writing as to raise a presumption of a certain undertaking, which is not conclusive except in favor of subsequent bona fide holders for value, parol evidence is admitted to explain the true contract between the original and immediate parties. And this is unquestionably true of the blank indorsement of a nonnegotiable bill or note. Indorsements at the making of a note, and before that of the payee, made by one who is not otherwise a party to the note, are to be distinguished from ordinary commercial indorsements, and are considered by themselves in a later chapter. In Georgia it is expressly provided by statute that all blank indorsements may be explained by parol evidence as against immediate parties and parties with notice. On the other hand, most authorities hold that the implications and intendments which the law merchant has attached to blank indorsements of negotiable commercial paper render them express and complete contracts,*204 which cannot he explained or varied by parol. This rule, as we shall see, has many exceptions. It has been applied even to an indorsement in blank made after maturity. Under it such evidence has been held to be inadmissible, even against an immediate indorsee, to contradict the indorsement by showing that the indorser was not liable. But an indorser may show, in an action by his immediate indorsee, an agreement on his part to sue the acceptor only, and not to look to the indorser.”—Randolph on Com. Paper, vol. 2, § 778.
The other pleas as to which demurrers were overruled were either bad, or subject to demurrer, or were fully covered by plea 7. It should be remembered that the liability of a maker is entirely different from that of an indorser. The contract expressed and that implied are different. Defenses are availing to one, which are not to the other.
The indorser’s contract is conditioned on due presentment for payment to the party or parties primarily liable, the maker or acceptor, and the notice of dishon- or, and a failure to make such presentment or to give such notice will discharge the indorser; but of course the maker of the note, who is primarily liable, is not entitled to presentment or to notice. Of course the indorser may waive the presentment and notice, but that question is not now in this case. Also, if the holder releases the maker or acceptor, this will effect the discharge of all subsequent parties, such as indorsers, unless the right against them is expressly reserved.
There are, of course, irregular indorsements, such as appear in this case, if the parties who wrote their names on the back of this note were indorsers and not makers. It appears that they so signed the note at its inception, and not after it was fully executed, as is the case of ordinary indorsements of notes.
The note here sued on was declared on as against the makers only; on its face it appeared that some of the defendants signed as indorsers and not as makers, and, if such was the fact, of course there was a material variance between the allegations and the proof; but parol proof was admissible to show that they signed as makers, and to thus prevent a variance, and the note would then be admissible in evidence, and it would then be a question of fact for the jury to say in what capacity they signed.
What we have said will be a sufficient guide on the next trial.
Reversed and remanded.
