Moody v. Keller

127 Ala. 630 | Ala. | 1900

HARALSON, 3,

1. There were demurrers to the pleas and replications, but no judgment appears to have been rendered on these demurrers. The judgment entry simply recites: Demurrers to pleas overruled, and demurrers to replications sustained. The case, then, so far as the record shows, was tried on the plea of the .general issue to the complaint, and on issue joined on the replications.

2. Dealing with the case as best we may in the confused condition it is thus presented on the pleadings, it would seem, the real issues were, whether the note sued on, — for the contract declared on in the first is nothing more than the note declared on in the fourth count, — ■ was a note made by the Tuscumbia Contracting Company to A. H. Keller, deceased, the defendant’s testator, for the accommodation of said Keller, to enable him to raise money by discounting it at the bank, as is averred in substance in the fourth count; or, whether the note was executed by the said Contracting Company on its own account for the puxqrose of borrowing money on it at said bank, with said A. II. Keller as an accommodation indorser thereon, as is averred especially in defendaxxt’s fifth plea.

Ixx coxmection with the above issue, the qxxestion is presented, if it were true that said Keller was merely an indorser on said note, for the accommodation of said Contracting Company, whether he was not entitled to notice of the dishonor of said note at rqaturity, the lack of which is set up in defendant’s fourth plea, as a defense to said note.

Again, as a reason why the defendant was not entitled to notice of dishonor, the plaintiff in his second replication admits that said Keller was an accommodation indorser on said note, but says that he “received the money or its equivalent in property from the Tuscumbia Contracting Company on the 23d of January, 1891, with which to pay said indebtedness of $3,300.”

3. Coming to treht these issues in the manner they are presented, wo observe that the first count in the complaint seeks to recover upon allegations to the effect that the Tuscumbia Contracting Company being indebted to the bank of which plaintiff is receiver, conveyed to defendant’s testator, Arthur H. Keller, certain assets, upon the promise of the latter to pay the debt of said bank. The second and third counts are for money had and received. '

There is no doubt of the principle that when a debtor makes a sale of his property in consideration of the purchaser’s agreement to pay the former’s debts, the creditor, for whose benefit such agreement ivas made, may maintain an action at law, or a suit in equity according to the facts, against the purchaser. — Dimmick v. Register, 92 Ala. 458. There is, however, an entire failure of evidence tending, to show any such agreement upon the part of defendant’s testator, as part of the consideration of the sale to him by the Contracting Company. Nor is there any testimony tending to show that defendant’s testator ever held any money to the use and for the benefit of the bank, represented by the plaintiff. These 'observations apply with equal force to those counts in the complaint seeking to recover upon a stated account.

4. This leads to a consideration of the counts which seek a recovery upon a promissory note executed by the Contracting Company to defendant’s testator and indorsed by him. It is alleged that said note was executed for the accommodation of defendant’s testator and indorsed by him to the Bank of Commerce; and it is to enforce this liability that plaintiff declares specially on-said note. There is no allegation of any demand made upon the maker or notice !of dishonor given the indorser. The allegation, however, that the note was made for.the accommodation of the indorser, would dispense with the necessity of an allegation of this nature. — Morris v. Birmingham Nat. Bank, 93 Ala. 511. However, we And no eA’idence in the record, that the note in suit ivas made for the accommodation of 'the indorser. But there is evidence tending to show that the Contracting Company conveyed assets to Keller to indemnify or secure him against liability upon said note. It was also attempted to be shown, that such assets constituted the entire property of the maker, and that by such sale it became and ivas insolvent.

In a suit against an indorser of a negotiable note, it is necessary to allege and prove demand and notice of dishonor, unless some legal excuse for their omission is relied on, in which event the declaration must aver the facts constituting such excuse. — Mims v. Central Bank, 2 Ala. 294; Cockrill v. Hobson, 16 Ala. 391; McDougald v. Rutherford, 30 Ala. 253. In this case the excuse relied upon as alleged is, that the note was made for the accommodation of the indorser. As to this, there was, as above stated, a failure of proof. It is unnecessary, therefore, to discuss as an excuse for failure to make demand and give notice of dishonor, the evidence tending to show that the indorser received indemnity from the maker. There is no allegation in the complaint of the plaintiff to which such testimony could correspond.

5. As to the amount of $444.71 claimed in the sixth and seventh counts as due lnr said A. H. Keller to said bank by account, it need only be said, that there was no proof to sustain the claim,’ but the evidence of C. H. Abbott, the. cashier of the bank, clearly shows that deceased did not owe that account to the bank.

There is no error in the record of which the plaintiff can complain.

Affirmed.