Ragsdale v. Gresham

141 Ala. 308 | Ala. | 1904

HARALSON, J.

It is perhaps unnecessary, for the purposes in hand, to determine the exact character of the order sued on, whether it is negotiable paper or not,' since it remained in the hands of the payee, and the question of a bona fide purchaser for1 value does not arise, and since the obligation or liability of the acceptor is the same, whether negotiable or not. — Battle v. Weems, 44 Ala. 105.

The effect of the acceptance of the order was, to constitute the acceptor the principal debtor. By the act of acceptance he assumed to pay the order or bill, and became the principal debtor, for the amount specified; the acceptance being an admission of everything essential to the existence of such liability. It admits that the acceptor had funds of the drawer in his hands, for the drawing of the order nr bill implied this. — 1 Daniel on Negotiable Instruments, §§ 552, 554. “A bill,” says Mr. Parsons, “is presumed to be drawn on funds, with the understanding between drawer and drawee that it Is an appropriation of the funds of the formed in the hands of the latter; and acceptance is an admission that it was so drawn, and of such relation between the parties.’'’ 1 Parsons on Notes and Bills, p. 323.

“An acceptance admits the genuineness of the signature, and the acceptance of tha drawee of the bill. It imports an engagement upon the part of the acceptor to the payee' or other lawful holder thereof, to, pay the bill according to the tenor of the acceptance when it becomes due, upon the presentment thereof.” — Story’s Bills of Exchange, § 113.

In Capital City Insurance Company v. Quinn, 73 Ala. 560, Brickell, C. J., reiterates the same doctrine thus : “The acceptance of the bill, which seems to lia.ve been contemporaneous with its drawing, and is founded on a consideration of value, — the pre-existing debt of the acceptors to the payees [drawer] imports an engagement upon the part of the acceptors, to pay the bill to the payees, or the rightful holder thereof, when according to its terms, it became due and payable. The acceptors became the primary, principal debtors, and their obligation was similar to that of the makers of a promissory note.”

“When an acceptance is once made, if the bill has been delivered to the: holder, the transaction is complete, and the acceptance is irrevocable.” — Story on Bills, § 252.

In this connection it may be said, that under our statute, (Code 1896, § 1800), the consideration of every and any written instrument, the foundation of the suit, may be impeached at law, and shown to have been made without consideration or that the consideration has failed. Hart. v. Life Ass’n., 54 Ala. 498.

The 3rd special plea simply set up, that there was no consideration for the order. This was a plea of want of consideration, and was good under our statute, and the demurrer to it, that it did not aver in what way or under what circumstances the order Avas wanting in consideration, Avas properly overruled.- — Giles v. Williams, 3 Ala. 316; Kolsky v. Enslen, 103 Ala. 97.

The burden was on the defendant to show a Avant of consideration. This burden was not discharged. When Anderson dreAV this order, and it was accepted by defendant, Anderson was indebted to Ragsdale, which indebtedness the order on defendant Avas designed to pay; and at the time it was draAvn, the defendant owed a small sum to Anderson, and was under written obligation to him, to owe him for the lease of the: mill in the future, an amount sufficient to pay the entire order. The acceptance of the order rendered the defendant the principal and original debtor to plaintiff, the payee of the order, for the entire amount of the order. What the defendant proposed to prove, and what he was allowed to introduce in evidence to show, was illegal and irrelevant to show that there was a want of consideration for drawing said order, and was open to the objections of plaintiff to its introduction. Rarden, the party who held the mortgage: on the saw mill leased by Anderson to the defendant, and Anderson and defendant could not by the arrangement between them, shown in the evidence, nullify the consideration for the order, and their efforts for this manifest purpose, were without legal efficacy to that end.

The demurrer to> the 4th and 5th pleas, should have been sustained. “An acceptance is not a collateral promise to pay the debt of another within the statute of frauds.” As between the acceptor and the payee, it is an original and direct undertaking. — Raborg v. Peyton, 2 Wheat. 386-7; Fisher v. Beckwith, 19 Vt. 31; Barker v. Prentiss, 6 Mass. 430; Daniel on Neg. Instruments, § 567; Autman v. Fletcher, 110 Ala. 452; Coleman v. Hatcher, 77 Ala. 217; Woodruff v. Scaife, 83 Ala. 152.

The court refused the general charge for the plaintiff and gave a like charge for the defendant. In this there Avasi error.

Reversed and remanded.