141 So. 696 | Ala. | 1932
Plaintiffs (appellees) sued the defendants, R. L. Parsons Lumber Manufacturing Company, a partnership, and R. L. Parsons and Carolyn C. Smith, the partners, individually, on six promissory notes, executed to plaintiffs by the defendants under their tradename of R. L. Parsons Lumber Manufacturing Company. The first note was executed on December 16, 1929, and the other five during the early part of the year 1930. The dealings between the plaintiffs and defendants covered a period of several years. The suit was filed in the circuit court of Morgan county on April 15, 1930, and on the next day the plaintiffs caused to be issued out of said court a writ of garnishment, in aid of the suit, directed to and served upon Benton Turrentine, as clerk of the circuit court of Limestone county, who, as such clerk, was supposed to be indebted to defendants, or to have money or effects belonging to defendants in his possession, or under his control.
On May 8, 1930, the said garnishee made answer to the writ, admitting an indebtedness to defendants, at the time of filing his answer, *63 of $900.76. On May 9, 1930, the defendants, under the provisions of section 8063 of the Code, gave bond and collected the money from the garnishee. This bond followed the terms of said statute in all respects.
The defendants, in the main suit, filed numerous pleas, including pleas of want of consideration, failure of consideration, and payment. The judgment entry recites that issue was joined by plaintiffs on each of the pleas, "separately and severally, with leave to give in evidence any matters that would constitute a good reply to said pleas, if well pleaded."
There was verdict for plaintiffs for the sum of $1,724.44, and judgment accordingly. This judgment was rendered on December 2, 1930, and at the conclusion of this judgment entry there follows, under date of December 3, 1930, judgment ascertaining and adjudging that the garnishee was indebted to the defendants, as of date May 8, 1930, in the sum of $900.76, "and that said amount shall bear interest from said date." The court then proceeded: "It is therefore ordered and adjudged by the court that the plaintiffs have and recover of the defendants and of their sureties on said (garnishment) bond, viz.: R. G. Cortner and Clara A. Cortner, the sum of $942.00, together with the cost of the garnishment."
It is insisted, first, by appellees that the judgments are separate, each final and supporting an appeal, and that both cannot be brought up for review by one appeal. In support of this contention appellees cite the case of Decatur Land Co. v. City of New Decatur,
In the case of Mobile Improvement Co. v. Stein, supra, there was one appeal to this court, which sought to have this court, on that appeal, consider six separate and distinct judgments, in six separate and distinct forcible entry and detainer cases, to recover of the defendant six distinct parcels of land.
In the case of Fulton v. State, supra, the defendant had been convicted under two separate indictments. Two judgments were entered against him, but only one appeal was taken, which included both cases. The appeal was here dismissed upon the authority of Mobile Imp. Co. v. Stein, supra.
In the case of Kelly v. Deegan,
The case of United States F. G. Co. v. Benson Hdw. Co.,
Had the appellees made proper motion to dismiss the appeal, it may be, though we do not decide the point, that his motion would be well taken, but no such motion was made, and the insistence is made for the first time in brief filed after the submission. The appellants, if such motion had been made, could have amended the certificate of appeal so as to present either judgment as the subject matter for revision. This was expressly so held in the case of Kelly v. Deegan, supra. In this state of the record, we will not dismiss the appeal, even if it were held to present two separate judgments for review.
It is insisted by appellants that the court committed reversible error in charging the jury, at the written request of the plaintiff: "I charge you that where the maker of a promissory note agrees with payee that if the payee will extend the time of payment to some future date, he will pay the same at the time so stipulated, such promise of the maker constitutes a new contract, binding in law and capable of enforcement, though the maker may have a good defense to the original note before the renewal under such agreement, either because of want of consideration or failure of consideration."
In the case of McCormick Harvesting M. Co. v. Yoeman,
It will be noted that the charge in question is almost an exact copy of the foregoing rule, with the added words "either because of want or failure of consideration." To substantially the same effect are the holdings in the following cases: Haglin v. Friedman,
In the case of Hogan v. Brown Co.,
In the case of J. B. Colt Co. v. Kelly et al.,
In the case of Cameron Johnson v. Nall,
The original note in the Cameron Case, supra, in renewal of which the note sued on was given, was not wholly without consideration, but was void only as to the interest. The note was made for the purpose of being sold to the then holder of the substituted note, and, if he had acquired it with knowledge of the facts, it would have been void only for the excess above the sum paid by him for it.
In 8 Corpus Juris, at page 444, § 658, the principle is stated broadly that "as between the original parties, and as against transferees who are not bona fide purchasers for value, a renewal note is open to all defenses which might have been made against the original note, at least in so far as they relate to consideration, such as want or failure of consideration, fraud, usury, gambling debts, or other illegality." And, continuing, the same authority further states the rule as to defenses cured by renewals to be: "However, where the defense is such that it can be and is cured by the renewal it cannot be urged. Thus, one who gives a note in renewal of another note, with knowledge at the time of a partial failure of the consideration for the original note, or of false representations by the payee, etc., waives such defense and cannot set it up to defeat or to reduce a recovery on the renewal note." Holczstein et al. v. Bessemer Trust
Savings Bank,
In Daniel on Negotiable Instruments, vol. 1 (6th Ed.) page 300, at section 205, the principle is thus stated: "An agreement to renew a bill or note is not valid unless upon consideration; the surrender and cancellation of a valid and enforceable obligation, however, is generally considered a sufficient consideration for the execution of a renewal note, and when the first note was without consideration, a renewal note is also."
Our own court, in the case of Cochran v. Perkins,
Thus it follows that, where the original note was without consideration, any renewal thereof would be without consideration, and as between the original parties the renewal note would be subject to the same defenses as the original note.
The vice of the charge under consideration lies in the fact that the jury is instructed that the giving of a renewal note for the original note would preclude the defendants from making the defense of want of consideration as well as of failure of consideration.
The charge, therefore, in our opinion, was bad, in that it precluded the defendants by giving the second note from setting up as a defense that the first note was without consideration, but, as the evidence shows that at best there was a mere partial failure, *65 and not a want of consideration, the giving of the charge was error without injury. We will not therefore reverse the trial court for the giving of said charge.
It is next insisted by appellants that the court committed reversible error in giving charge C, at the request, in writing, of the plaintiffs. This charge was: "The burden of proof rests upon defendant to reasonably satisfy you from the evidence the truth of each of their special pleas."
It will be noticed that this charge only deals with the question of burden of proof, nothing else. The burden of establishing to the reasonable satisfaction of the jury the special pleas was upon the defendants. If the defendants conceived that the charge was misleading, they should have asked an explanatory charge. This was not done.
It is next insisted that the court committed error in rendering judgment against defendants and sureties, on the bond given to procure dissolution of the garnishment, in excess of the indebtedness of the garnishee to the defendants. The garnishee by his answer admitted indebtedness to the amount of $900.76 at the time of his answer. The defendants by their bond secured the dissolution of the garnishment. Under the bond, they, the defendants and sureties, were liable for the payment of the $900.76 and cost of the garnishment suit, Code, § 8063, but not for interest on said $900.76. In charging the defendants and sureties with the interest on said sum, the court committed error. The judgment rendered on the dissolution bond will be here corrected by deducting the interest item of $41.24, reducing this judgment to $900.76 and cost. Of course, when his amount is paid to plaintiffs, the same shall be payment, pro tanto, of the original judgment against defendants.
As corrected herein, both judgments will be here affirmed. Let the appellees pay all cost of appeal.
Corrected, and, as corrected, affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.