115 So. 13 | Ala. | 1927
The appeal here is by the defendant from the order of the trial court granting plaintiff a new trial. The suit as originally commenced was one by the payee of a promissory note against the maker and an indorser. After demurrer sustained to the complaint, it was amended by striking the name of the maker as a party defendant, and the case proceeded to judgment in favor of the other defendant.
The several defenses presented by the defendant under the general issue, pleaded in short by consent with leave, were payment, no consideration, illegal consideration, and novation, and on some of these issues the evidence was in sharp conflict, and some of the material questions rest in inferences to be drawn by the jury.
The evidence offered, so far as now material, to state its general effect, was that through taking over the assets of the Bank of Elmore, which was then in a failing condition and of which the maker of the note in suit was president, the plaintiff bank acquired certain claims arising from overdrafts made *126 through the Bank of Elmore. Soon after the plaintiff acquired these claims, prosecutions were instituted against Holloway, the maker of the note, for felonies alleged to have been committed by him in connection with conducting the business of said Bank of Elmore. These prosecutions were instituted through the activities of some of the plaintiff's officers or agents, and it was represented on the preliminary trial thereof by its counsel. After these prosecutions had culminated in several indictments against Holloway in the circuit court of Elmore county, notes were given by Holloway in adjustment of some of the claims, above referred to, and according to Holloway, who testified as a witness for the defendant, the consideration in part was that these prosecutions were to be suppressed.
The evidence offered by the plaintiff was to the contrary.
The note in suit was subsequently executed in lieu of one of the original notes, or in renewal thereof, and indorsed by the appellant, who waived "notice of demand, protest, and nonpayment."
On June 21, 1923, Holloway, the maker of the note, executed and delivered to the plaintiff his note covering the indebtedness represented by the note in suit, payable October 8, 1923, which, on its face, states "renewal of note of $1,080 dated October 8, 1921," and at the same time paid to the plaintiff $540 to be applied to another note indorsed by defendant, and the interest on the indebtedness represented by the note in suit until the due date of the new note. The note in suit was not delivered to Holloway, but the defendant offered evidence tending to show that the note in suit was not carried forward in the bills receivable account as an obligation due to the plaintiff, but as representing this indebtedness the new note given by Holloway on June 21, 1923, only, was carried forward on this account. So far as appears, no demand was made on the defendant, the indorser, until after Holloway made default in his obligations, as evidenced by the note of June 21, 1923, when the president of plaintiff bank, in a conversation with Nobles at his (Nobles') home, made demand on him for payment, and Nobles then stated that he understood he had been relieved of liability by plaintiff taking Holloway's personal note.
The law guards with jealousy every avenue to its courts, and strikes down everything in the shape of contract which may offer a temptation to interfere with the due administration of justice. 6 Rawle C. L. 757, 758, §§ 165-167.
Under the evidence in this case it was a question for the jury as to whether there was an agreement, express or implied, that in consideration of Holloway giving the original notes the prosecutions against him would be suppressed or stifled. If the jury so found, the note in suit given in renewal of one of such notes was infected with like infirmity and is void. The question argued, as to the authority of the cashier of the bank in accepting Holloway's note of June 21, 1923, and the effect of this transaction, standing alone, on the defendant's liability, is not presented by exceptions reserved to the evidence, nor by instructions requested and refused to appellant, or given for appellee, and is at most only incidentally involved as related to the general effect of the evidence as a whole.
The appellant was not a party to the transaction in which the note of June 21, 1923, was taken from Holloway, and while the recitals in the face of the note are prima facie evidence of the intention of the parties thereto, that it was given and accepted as a renewal merely, it is not conclusive as against the appellant; but when these recitals are considered in connection with the subsequent conduct of the plaintiff in carrying forward the new note on the bills receivable account as the sole and only obligation representing this indebtedness, and the belated demand on the appellant for payment, it was for the jury to say whether the acceptance of the new note was given in payment or was merely a renewal.
In Keel v. Larkin,
"Whether a new security of no higher nature, executed by a debtor, is taken in payment and discharge of a pre-existing debt, for which it is given, is a question of intention. * * * The giving of the debtor's own note or bill, even though negotiable, does not, according to what is deemed the better doctrine, as settled in this state, operate to discharge such debt, unless accepted in absolute payment. Prima facie, it is considered only as collateral, or additional security; but all the authorities are 'in harmony as to the proposition that by express agreement it may be regarded as a satisfaction and a bar.' Day v. Thompson,
"We are also clearly of the opinion, that it may as well be proved likewise by an implied agreement of the contracting parties. Both express and implied contracts are founded upon the actual agreement of the parties, the only distinction between them being as to the mode of proof, or evidence by which they are substantiated. Story on Contr. § 11. There are, no doubt, some cases so free from ambiguity, or opportunity for inference, as that a court could legally presume such intention; but, in all cases of doubt, it is well settled to be a matter proper for the determination of a jury, who would have a right to consider all the relevant circumstances of the case throwing any light upon the question of intention."
The doctrine of that case has been recently reaffirmed. Morgan Paving Co. v. Carroll,
We deem the foregoing sufficient to indicate that we are of opinion the charges *127 requested by the plaintiff and refused by the court were properly refused; if, for no other reason, they invaded the province of the jury.
One of the grounds of the motion for a new trial was that the verdict was contrary to the evidence. After full review of the record, while as we have shown there was evidence justifying the verdict, yet, after mature reflection, we are not satisfied that the evidence is so manifestly and palpably in favor of the verdict as to justify a reversal of the order of the circuit court granting the new trial. Smith v. Tombigbee Northern Ry. Co.,
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.
