Mobile County v. Sands, 127 Ala. 493

127 Ala. 493 | Ala. | 1900

McCLELLAN, ,C. J.

This action is prosecuted by Tell Nardin and B. M. Sands, as administrator of John Nardin, deceased, against Mobile county on past due-coupons issued with and originally attached to -bond No. 17 of a -series of twenty-five bonds of one thousand dollars each, issued by the county of Mobile under an act of the legislature approved January 24, 1879. The complaint, after -setting forth the cause of action, averred that said bond, and the coupons counted on thereto attached “have been lost -or destroyed by accident, and that the same nor any part thereof have been paid nor otherwise discharged, of which facts an affidavit as provided by law is filed with the complaint.” The complaint also -avers that before the commencement of the suit, plaintiffs presented the claim sued on “with an itemized statement thereof, verified by the affidavit of a person having knowledge of the same to the Board of Kevenue and Boad Commissioners of Mobile County at a regular session of said board for payment, which was refused.” Defendant among others interposed the following -pleas, which were verified: “8. Plaintiffs do not own the coupons or claims sued on, or the debt evidenced thereby,” and, “9. * * * That the coupons described in the complaint upon which the action is founded were not issued by defendant, or by any -one- authorized to bind it in tlie .premises.” On this state of pleading in the connection under consideration, tlie plaintiffs were allowed against defendant’s objection to read to the jury-in connection with the complaint the affidavits of Tell Nardin and N. M. Sands, the plaintiffs, to the effect that the coupons sued on belonged to the plaintiffs, that the. bond for interest upon which they were issued and to which they Avere attached, and said coupons Avere issued by the county of Mobile under the act of January 24, 1879, said bond being numbered 17, that said interest evidenced by said coupons is payable semi-annually 'to the maturity of the bond in the year 1909 on first days of February and August, that there was due on each coupon attached to said bond from August 1, 1886, to August 1, 1898, the sum of forty dollars, or the total sum of nine hundred and sixty dollars, and that said bond with all the unpaid coupons thereto attached had been lost or destroyed by accident, and that the same nor any part thereof had. been paid nor otherwise discharged. These are the affidavits referred to in the complaint. They are statutory affidavits, being provided for and their office prescribed by section 31 of the Code. That section so far as applicable here is in the folloAving language: “Suit may be brought on a bond, note, bill of exchange, or other mercantile instrument, Avliich has been lost or destroyed by accident; and if affidaAdt is made by the plaintiff of such loss and destruction, and the contents thereof, and that the same has not been paid or otherAvise discharged, and accompanies the complaint, it must be received as presumptive evidence, both of the contents and loss or destruction of such instrument, unless the defendant by plea, verified by affidaAdt, denies the execution of such bond, note, or bill, or the indorsement, acceptance, or the contents thereof, in AAdiich case proof of such execution, indorsement, acceptance, or contents must be made by the plaintiff.” The statute is enabling and permissive, but not mandatory. Suit on a lost instrument may be brought Avithout the affidavit, but if so brought the burden of proving the-loss and contents of the instrument is on the plaintiff. When the affidavit is made, its sole operation and. effect is to shift this burden onto the defendant. — Glassell v. Mason, 32 Ala. 719; Parker v. Edwards, 85 Ala. 246. But by the express provision of the statute this onus is shifted back again onto the plaintiff when-'the defendant by verified plea denies the execution of the instrument. — Edwards v. Parker, 88 Ala. 356. So that the .effect of such a plea is to entirely emasculate and render innocuous the affidavit, defeat its only operation and to leave the case to* stand as if it had never been made. As we have seen, there was a plea of non est factum, in this case. Also a plea denying plaintiffs’ ownership of the instruments sued on. These presented the sheer issues of execution by defendant and ownership by plaintiffs, and upon those issues the burden was with the plaintiffs. • Upon them they were allowed to read Nardin's and Sand’s affidavits to the jury. Those affidavits were directly pertinent to those issues, but they were clearly illegal as evidence. They were not parts of the complaint, and having had their whole office in the case wrested from them by the plea, they stood upon the same footing as any other ex parte deposition of the affiants; a footing of incompetency and inadmissibility. The Court, in our opinion, erred in allowing them to go or be read to the jury.

The theory of plaintiffs was that Julien Nardin, now deceased, owned this bond and these coupons, that he lost them by accident and that the title to them passed to Tell and John Nardin by the last will of Julien Nardin: The burden being on plaintiffs to show Julien Nardin’s ownership of the instruments and their accidental loss by him, they were allowed in discharge of this burden to show that said Julien soon after the time of the alleged loss, had procured Mr. Bromberg, his agent and attorney, to insert an advertisement in a newspaper stating that bond No. 17, involved in this suit, had been lost, offering a reward for it, and warning all persons against trading for it, etc., etc., and the court also allowed them to introduce the advertisement as printed in the pa'per purporting to be signed Fred’k. G. Bromberg, Attorney. The basis of all this evidence was a mere declaration of Julien Nardin to Mr. Bromberg in effect that he, Nardin; owned and had lost this bond. It was hearsay, not part of the res gestae of any fact or situation pertinent to the case, and the advertisement and all the testimony relating to it should have been excluded.

Assuming without deciding that plaintiffs’ claim was such a one as is required to be presented to the commissioners -by section 13 of the Code in the manner, etc. prescribed by section ldff7, we think the evidence shows such presentation when the petitions of Julien Nardin and Lesquereux, his executor, the action of plaintiffs’ attorney in seeking to have the commissioners recede from their action overruling said petitions, and to have them allow the same as prayed in those petitions, and the other evidence as to the verification and itemization of the claim is taken and considered together. The statute does not require the verification of such claims, at least when made by the claimant, to recite that he has personal knowledge of its correctness. — Code, § 1417.

At the time Julien Nardin executed his will, at the time the evidence tends to show he lost the coupons and at the time of his death the bonds and coupons were not commercial paper. — Blackman v. Lehman, Durr & Co., 63 Ala. 547; Reid v. Bank of Mobile, 70 Ala. 199. If. for the purposes of this suit the status of non-negotiability is to be considered as still upon them, these plaintiffs are entitled to maintain this action as beneficial owners. On the other hand, if they are now to be treated as commercial paper by force of the act of February 28, 1889, embodied in section 875 of the Code, the will of Julien Nardin, taken in connection with .the facts that the bond and coupons constituted in part his residuary estate bequeathed to Tell Nardin and John Nardin and that there has been a final settlement of his estate, is as against the thief who .purloined them from the testator, and in whose hands they now are presumptively, a transfer by constructive delivery to plaintiffs vesting in them the legal title necessary to the maintenance of this action; the thief’s mere naked and tortious possession for the purpose of passing title from the testator into the legatee being considered the possession of the transferor before and of the transferee after the transfer, he, of course, having at no time any title or right of possession.

We are of the opinion that the view, declared by the trial court that a loss by theft is within the statute is the correct one. The qualifying statutory phrase “by accident” may operate to defeat the application of the provision to cases where the holder has intentionally •destroyed or lost — thrown away, for instance — the paper, but beyond this we are sure that the quo modo of the loss is immaterial. A loss by theft is essentially, within the purview of the statute, a loss' by accident so far as the holder is concerned. And this construction is reinforced by section 32 of the Code providing indemnity and thereby evincing a contemplation that the paper is still extant.

Many rulings were made on the pleadings. We deem it unnecessary to discuss them all in detail. The case finally got to the jury upon a fair presentation of its real issues; and if any error whs committed in rulings on demurrers, motions to strike, etc., etc., they involve no injury. The 'complaint, we think, sufficiently averred the execution by the county of the bond involved in the suit and of the coupons sued on. Moreover whether the bond and coupons were duly executed or not, if the county, having statutory authority to execute these papers, in fact, issued them, and received the money evidenced by the bond, and retained and used it for the statutory purpose, it cannot now be heard to say that it did not execute the bond or the coupons.

In the manv rulings of the court excepted to and not covered by what we have said, we find no error.

Reversed and remanded.