Morris & Blair v. Poillon, 50 Ala. 403

Morris & Blair v. Poillon

50 Ala. 403 | Ala. | 1874

Lead Opinion

PETERS, C. J.

The complaint in this case is in the form prescribed by the Code. It contains a statement of all the matters and facts necessary to show that the plaintiffs, primé facie, are entitled to recover. It describes the promissory note which is the foundation of the suit, in the manner designated in the form of complaint given in the Code,, and it avers that the note is “ the property of the plaintiffs.” This is enough. Pickens v. Oliver, 29 Ala. 537; 26 Ala. 552; 36 Ala. 69. The demurrer to the complaint was, therefore, rightfully overruled.

2. The objection to the written contract, offered in evidence by the plaintiffs on the trial below, was not well taken. The promissory note declared on is one payable generally, without the designation of any particular place of payment. ' The note offered in evidence corresponds to this description, but added to it are these further words : “ negotiable and payable at their *407office in New York, with the current rate of exchange on New York.” This, it is true, shows a note payable at a particular place. This would' have been a fatal variance under the old decisions of this court before the Code. But these are now overturned by the forms of pleading in the Code, and the construction of these forms in the case of Clark v. Moses, at the present term ; also, Weaver v. Lapsley, 42 Ala. 601.

3. The ownership of the note sued on was in the plaintiffs, whether their title was legal or equitable. They were the only parties entitled to bring the suit in their own names for its recovery. Rev. Code, § 2523. The evidence offered to show this ownership was competent. If the jury believed it, it was sufficient. The plaintiffs themselves are competent witnesses to show their ownership. Rev. Code, § 2704.

4. The evidence tends to show, that Whitlock & Co., the assignors of the note in suit, and the plaintiffs, the assignees, at the time of the alleged assignment were citizens of the State of New York, and that the assignment was made in the citj'- of New York. Then, though the assignment was made during the late war, there is nothing in this evidence to show that either of the parties was dealing with a public enemy. They were citizens of the same government, dealing with each other at home, and not with the enemy. This is not forbidden. The note was at that time in this State, when its people were in insurrection against the government of the- United States. This did not defeat any right in the owner to transfer the note to any other person, who could become its legal owner. The seizure by the receiver of the Confederate States government, then having military control of this State, did not in any way interfere with the owner’s right to transfer the note. The Confederate government was a nullity, and the receiver or other agents of that government could not derive any power, except that of mere force, to seize the property of the citize,n under its authority. The acts of such agents were wholly void. In law, they were nothing. If the note had been lost to the owners by this interference, the receiver would have been personally liable for the damages which such loss may have occasioned. Hickman v. Jones, 9 Wall. 197. The acts of the receiver, merely as such, could not have defeated the assignment ; and this, particularly after the note had gone into the hands of the true owners, before suit, as was the case here.

5. The objection to the judgment of the court below is not such as would operate to defeat an affirmance in this court. It should have been rendered for the amount of the verdict and the costs. But the amount of the verdict being shown by the record, the judgment will be corrected here, and affirmed for. the proper amount.

*4086. The other assignments of error are too general and vague to bring them within the requirements of the rule of practice in such a case. This court will not feel itself bound to notice such assignments, unless they are argued at the bar, or pressed and enforced by authorities by the counsel in their brief.

The judgment of the court below will be corrected here by the verdict, and affirmed.

Dissenting Opinion

BRICKELL, J.

(dissenting.) — A complaint on a promissory note, for the payment of a specified sum, at a particular time, is not supported by evidence of a promissory note, payable and negotiable at a particular place, “ with current rate of exchange.” The two notes are not the same in legal effect or obligation, and the amount recoverable on each is different. Pickett v. King, Upton & Co. 2 Ala. 570.