111 Ala. 422 | Ala. | 1895
As is alleged, S. W.‘Williams and Leillia S. Williams, on June 28, 1892, for money borrowed by the former, executed to appellee, Butler, who was plaintiff below, their promissory note for five hundred and fifty dollars, payable one year after date to said Butler, or order, at the Peoples Bank, Mobile, Ala., with interest from date. The appellant, Martin, defendant below, at the same time, executed, on the back of said note, the following : “I hereby guarantee the payment of the within'note on condition that the mortgage securing the same be assigned to me upon my payment of same if payor defaults.” (Signed) “W. H. Martin.” Butler sued Martin on this guaranty, in six counts, as the case was tried, numbered 2, 3, 6, 7, 8 and 9. The complaint also contains count 4, for $550 due defendant by account, on to-wifc, the 28th day of June, 1892 ; and count 5 for a like sum for money paid, &c., same date. The second count set up the note and the defendant’s guaranty thereon, as above copied, and alleged default in the makers; due protest and notice to defendant; due offer of plaintiff to assign the mortgage to defendant upon his payment of the note ; his readiness to do so, and defendant’s refusal to pay The remaining special counts upon which the case was tried were substantially the same as the second, so far as material. The defendant pleaded the general issue to all the counts mentioned, and filed three special pleas, to the six special counts, numbered 2, 3 and 4, respectively. No! 2 simply alleged that plaintiff did not assign or offer to assign “any valid mortgage held by him securing the payment of the note in said count mentioned.” The court very properly, for reasons which plainly suggest themselves, sustained a demurrer to this
The fourth plea sets up more at large the same false representations alleged in the 3d plea, made both by Irvine and Williams, in the presence of each other; and upon it issue was joined.
The plaintiff offered in evidence the note and the guaranty of defendant indorsed thereon, to which objection was made, on the ground that the execution of the note was not proven, nor self-proving. The guaranty was the foundation of the action and self-proving. It refers to, and, essentially, makes the note a part of it. The confession of the execution of the guaranty, therefore, necessarily carried with it admission of the note, as and for what it purports to*be.
The plaintiff introduced evidence in support of the allegations of the special counts. The defendant testified substantially to the allegations of his special plea, and further that it was agreed by Irvine, Williams and himself that the $500 to be borrowed of plaintiff should be paid over to him, the defendant, for Williams, out of which he could retain the $300, to take up the 90 days note which, he testified, Irvine and Williams stated to him had been given by Williams to Amy Crenshaw for balance of the purchase price of the land said to have been purchased by Williams. He testified that Irvine and Williams exhibited to him a receipt purporting to have been executed by Amy Crenshaw, the supposed vendor, to Williams for $1,000 of the purchase money. He produced a written agreement signed by Williams, dated June 27th — the day before the guaranteed note to plaintiff was executed — reciting that in consideration of defendant’s indorsement of a note for $550 which had been given by Williams, with mortgage attached, for property bought of Amy Crenshaw, $1,000 of which had been paid, and the balance to be paid by defendant out of the proceeds of the timber that Williams was to ship down to Martin, Taylor & Co. (afirm of which defendant was a member), immediately. Out of the $550, the sum of $239 was to be paid as follows : $150 to Williams for getting the timber and hauling it; $50 to Williams to be paid to J. L. Williams ; $10 to Barnes for making abstract, and $29 to Barnes to pay taxes due on the property. The balance, $261, to remain with Martin, Taylor & Co. until the timber referred to is brought down and closed up. Out of the sale of the timber an amount sufficient to pay Amy Crenshaw for the balance due by Williams on the property bought by him — taxes and everything due, and the making of titles to the property — should be paid, also $25 to defendant for indorsing the said paper of $550 ; also $75 to defendant which would be due shortly. Then $200 to remain with defendant to secure payment by Williams of the $550 due in 12 months after date, June 27th, 1892, “is to be paid in full by said Williams. ’ ’ Defendant testified that $500
Under the common counts, the plaintiff’s position was, that the defendant still had the borrowed moiiey, or the greater portion of it, which at his instance had been paid 'to him, when the fraud, and worthlessness of the mortgage became known to him, and that it was his duty to ' restore the same to the plaintiff. If the facts hypothesized be true, there can be no doubt; of the correctness of this proposition. It ivas competent, therefore, for plaintiff to introduce evidence tending to show notice of the fraud to defendant, at a time when he ' still had in his hands the borrowed money or any part thereof. Plaintiff could also introduce evidence tending to corroborate the theory of other evidence, that defendant executed the guaranty in reliance upon his asserted timber arrangement with Williams, and the agreement that the borrowed money was to be paid to and disposed of and held by him for his security, and not in reliance upon any false repre
As to the interrogation by plaintiff’s counsel of the defendant, calling for the details of another transaction had by him with William's, the question was not answered.1 The question following, simply asked if he had no: had another transaction with Williams. Details were not called for. The witness volunteered to state the details without objection; but defendant subsequently moved to exclude them. The matter related to the timber arrangement, which the plaintiff had a right to investigate. The answer of the witness was, that about March or April, 1892, Williams wanted to borrow some money on a lot of timber, and his recollection was that he paid Williams $75 in cash and accepted a $75 draft drawn by Williams. The court did not err in overruling the motion to exclude. Plaintiff’s counsel then asked: “When you accepted that draft, did you or not believe that Williams was all right and straight?” This question was really not answered. It provoked the witness to state that ‘ ‘he never knew anything perfectly straight with a negro until he had settled up.” There was no objection to the statement by either party, nor motion to exclude it.
Upon principles already stated, it was not improper for plaintiff to ask defendant whether he did not know that Amy Crenshaw had caused Sam Williams to be arrested on the 29th or 30th of June, 1892. But, again, this question was not answered in any way. ' The question following, as to the interview with Irvine on June 30dh or July 1st, in reference to the publication in the newspaper, was entirely proper ; but if it had been improper, the witness answered that he had no such conversation, and no injury1 could have possibly resulted from the question. The newspaper article itself was properly admitted in evidence, the defendant testifying
Several other questions were asked defendant, and exceptions reserved thereto, which were either not answered at all, or answered negatively so as to work no injury to defendant, if they were conceded to have been improper. The newspaper article stated that Williams (before obtaining the lo .n from plaintiff) endeavored to obtain money and goods from one Baerman on the Crenshaw property, and showed him a deed to the property; -and in the effort, exhibited to Baerman a note from Martin, Taylor & Co., stating that if the property was worth the amount stated in the deed for which Williams had shown a receipt for $1,000 from Amy Crenshaw, they would take it and stand security. Baerman declined to extend the desired accommodation. The plaintiff jead this portion of the article to the defendant, and asked him if he wrote the note to Baerman referred to. Objection and exception reserved to allowance of the question. The purpose of the question was to show activity by the defendant in endeavoring to procure a loan for Williams on the Crenshaw property, near the time of the negotiations with plaintiff’s agent, and, in connection with the other evidence, -was'a circumstance to be considered by the jury, in determining whether defendant was induced to make the guaranty by the false representations of Irvine. Defendant ivas asked if he had made such an offer, in June, to Shiftman & Richards, to which he answered, no. He Avas then asked if he took any steps to see that any note that might have been sent to Shiftman & Richards or to A. Baerman, was forged. If such steps had been taken, resulting in disclosures to defendant of such forgeries, the plaintiff had the right to prove the fact, in support of his case on the common counts, under the principles Ave have already declared ; and the question objected to, was a proper preliminary inquiry to that end. The witness ansAvered, no. If it was supposed the matter, thus culminating, might induce the jury to think that such
The oral charge to which the exception was reserved, ' was a very clear enunciation of a principle declared in this opinion, and was tree from error.
The first,second,third, fifth and sixth charges requested by the defendant, improperly ignore the common counts, and were properly refused.
Leaving out of view all false representations made, or claimed to have been made, by Irvine to defendant to induce the execution of the guaranty, and assuming there was no fraudulent concealment from defendant of material facts by Irvine, it is very clear that the invalidity or worthlessness of the mortgage given by Williams to the plaintiff affords the defendant no defense. The fourth charge requested by the defendant ignores the question of false representations, and there is no evidence from which the jury could infer a fraudulent concealment by Irvine, from defendant, of the fact that the mortgage was worthless. Moreover, there was no plea setting up fraudulent concealment.
Affirmed.