Myatts & Moore v. Bell

41 Ala. 222 | Ala. | 1867

BYRD, J.

(After stating the facts as above.) The evidence tended to prove other facts, and, to some extent, to oppugn those above stated. But, we have set forth as many of the facts which the evidence tended to prove, as we conceive necessary for the determination of the questions raised by the charges given and those refused by the court.

1. The charges verbally asked, and refused by the court, were properly refused, as they were not in writing, as required by section 2355 of the Code. This disposes of the charges numbered 2, 4, and 6. No. 5 does not appear on its face, or otherwise, to have been “in writing,” or verbal. In such a case, we hold, that the charge will be presumed to have been in writing, where no objection appears to have been taken to it in the court below; and the objection can not be raised for the first time in this court.

2. The charges asked and given must be construed with reference to the evidence; and if there is any evidence upon which a charge asked can be based, if it is a correct principle of law, it should be given. The law seems to be settled, in this court, that a party who takes a note of one of several joint debtors, can not maintain an action against all of them, on the original indebtedness, without producing the note, if in his possession, and offering to surrender it on the trial.—Mooring v. Mobile Marine Dock & Mutual Ins. Co., 27 Ala. 258, and authorities cited therein. The law will not allow the creditor to hold a note against a joint debtor, and, at the same time, recover a judgment against him on the consideration of the note. And we see no reason why this rule should not apply to parties who deny the execution of the note by an appropriate plea, as well as to a party who does not put in issue the execution of the note. But, however this may be, we proceed to other questions of law involved in the cause, which, with the authorities referred to, will aid the court in disposing of this cause on another trial.

3. The agreement of all the partners, that one of them shall wind up the business after the dissolution, while the others have nothing to do with it, confines the power to the one designated, but does not enlarge his power, and confers no more power than the partner would have by the general principles of the law of partnership.—Parsons on Partnership, 388, et seq.; and authorities there cited. The authority, therefore, which the Myatts may have given Moore, to wind up the business, and to pay the debt due to the appellee, conferred on him no more or greater authority, as to that debt, than he had by the law; and therefore his acts, as to taat debt, must be tested by the general principles of the law of partnerships. By that law, one partner, after the dissolution of the firm, has no authority in law to renew a promissory note made by the partnership, by signing the partnership name, and thereby bind the partners; but it would be the note of the partner executing it, and binding on him. — Cunningham v. Bragg, 37 Ala. 436, and authorities cited; Parsons on Partnership, 391, and references t and u. And especially in a case like this, where the partner executing the note has included therein compound interest.

4. The general doctrine is, that the mere giving of a note for a debt is not a discharge or payment of the debt; and the note may be surrendered, and a recovery had on the debt. But, if there are any facts tending to show that the note, even when given by one of several joint debtors, was received in payment of the debt, then it becomes a question for the jury to determine, whether it was so received; and if they find that it was, then no action can be maintained on the debt.—Lee’s Adm’r v. Fountain & Freeman, 10 Ala. 755, and authorities cited therein.

5. The defendant Moore made a payment on the note which he gave, and on which he alone was personally liable ; which payment did not amount to the interest due on the note at the time the payment was made; and there being no application of the payment to the original debt by the parties, the statute applied the payment to the interest due on the note given by Moore.—Code, § 1522. Such a payment can not, as a matter of law, be considered a promise on the part of the Myatts to pay the original indebtedness due to the appellee from the partnership, so as to relieve the case from the bar of the statute of limitations of six years, as to the original cause of action, although the payment may have been made by Moore within six years before the suit was brought. The appellee, by introducing the note given by Moore, and by endorsing the payment thereon, and claiming it on that note, without offering to credit it on the original debt, shows that he insists on the note as valid, at least against Moore, and that he claims the payment on that note, which includes compound interest ; and thereby attempts to get the benefit of the payment on the note of Moore, and at the same time use it as evidence to remove the statutory bar as to the Myatts on the original debt. Such an operation is not tolerated by any principle of law of which we are aware.

A payment by one of several joint debtors, before the statute has completed a bar, will not prevent the completion of the bar as to the others, at the expiration of the time within which the statute required suit to be brought on the original evidence of debt, relied upon to sustain the action. Lowther v. Chappell, 8 Ala. 353, and authorities cited; Angell on limitations, § 260, and note 4. Nor can one partner, after the dissolution of the partnership, by a payment made on a partnership liability, and before the statute has perfected a bar, affect the running of the statutory bar in favor of the other partners, but can only affect it as to himself. — See authorities above cited. We see no reason why partners, after a dissolution, should be held to a different rule than that applicable to other joint debtors.

We have laid down some general principles for the guidance of the court on another trial, without noticing each of the charges given and refused by the court. But the charge numbered 5, asked by the appellants who have assigned error, and refused by the court, is in harmony with the principles herein laid down, and should have been given. And so far as any charge given may be in conflict with this opinion, it is erroneous.

On all the questions of law herein stated, see the authorities cited in the briefs of the learned counsel on both sides.

Eor the refusal of the court to give the 5th charge, the judgment of the court below must be reversed, and the cause remanded.