48 So. 62 | Ala. | 1908
— This suit Avas brought by the appellee against the appellant and Gus Woodruff. The cause of action is a negotiable promissory note alleged to have been signed by Woodruff and indorsed by Scarbrough, and there are separate counts against each and others against both jointly.
The assignments of error first insisted upon are to the action of the court in overruling demurrers to the complaint as amended. T'here was no error in overruling said demurrers. The agency of said Noble, upon whom the notice of dishonor of the note is claimed to have been served; is sufficiently set out in the count. It is also sufficiently alleged that said Noble was authorized to receive such notice. At any rate, the count alleges that the notice was given to Noble, “who was present at defendant’s (Scarbrough’s) place of business and in the service and employment of said Scarbrough,”
The next assignment of error insisted on is that the court erred in allowing the name of Gus Woodruff to be stricken out as a party defendant to the complaint. Section 3331 of the Code of 1896 (section 5367 of the Code of 1907). Our courts have held that one of the objects of this statute was to permit amendments striking out improper parties to the suit, without working a discontinuance of the action. —Vinegar Bend Lumber co. v. Chicago Title & Tr. Co., 131 Ala. 411, 30 South. 776; Evans Marble Co. v. McDonald & Co., 142 Ala. 130,133, 37 South. 830; Masterson v. Gibson, 56 Ala. 56, 58; Jones r. Nelson’s Ex’r, 51 Ala. 471; Mock v. Walker, 42 Ala. 668, 670; Leard v. Moore, 27 Ala. 326, 328. While the payee of a negotiable promissory note may sue both the maker and the indorser simultaneously in separate actions, yet, without statutory provision to that effect, there is no authority for suing them jointly. 8 Cyc. 292; 3 Randolph on Commercial Paper, § 1669. In the case of Abercrombie v. Knox et al., 3 Ala. 728, 37 Am. Dec. 721, referred to by counsel for appellant, the reference is to “separate suits” against all the parties. 3 Ala. 729-731 (37 Am. Dec. 721). Seeking to hold Scarbrough as a joint debtor does not change the fact that he is merely an indorser. As it Avas improper to join the maker in a suit against the indorser, there was no error in allowing the complaint to be amended by striking out the maker.
As to the notice of dishonor, the law recognizes a verbal notice as sufficient. —Martin, Dumee & Co. v. Brown, Shipley & Co., 75 Ala. 443, 448; Abels v. Planters’ &
As to the form of the notice, no particular form is required. “All that is necessary is that * * the party liable and intended to be charged should be apprised of the dishonor and that he is looked to for payment.” Martin, Dumee & Co. v. Brown, Shipley & Co. supra. Taking the notice and the reply together, it was open to the judge to infer that it was understood by both parties that the note had been dishonored and that the plaintiff looked to the indorser for payment, and hence that the notice was sufficient.
■ The only remaining contention is that the court erred in stating, in the judgment, that said indorser had waived the benefit of the exemption law as to personal property. The note contains, in the face of it, this clause: “And as a part of the consideration of this note, we each, whether maker or indorser, agree and hereby waive all right to have any of our personal property exempted from levy and sale under legal process for collection of this debt, whether under the laws of Alabama, or any other state in the Union.” Bat the indorsement was simply by signing the name, without any such statement. The law is clear that the indorsement is a separate and independent contract, and that the only contract of the indorser is, “first, that it (the note) shall be paid on :due presentment. and notice or dishonor; second, that
Section 210 of the Constitution of 1901 authorizes the right of exemption, as to personal property, to be waived by an instrument in writing; and section 4232 of the Code of 1907 (section 2105, Code 1896) provides that “as to personal property the waiver may be made by separate instrument in writing subscribed by the party making the same, or it may be included in a bond, bill of exchange, promissory note, or other written contract executed by him.” The only contract “executed” by the indorser is the simple indorsement, which has a certain definite meaning and certain limitations. He has not “executed” any writing whereby he has waived his exemption. The waiver of the exemptions is no part of the obligation of the note, but simply an additional agreement which the maker of the note malíes. He cannot make it for the indorser, and the indorser cannot be held to have waived his exemption by implication. Both the Constitution and the statute show a clear intention that the waiver must be in the writing which the party signs. The court therefore erred in holding that Scarbrough had waived his right of exemption.
The judgment of the court will be here corrected, by striking out the second paragraph, relating to waiver of exemptions, and, with said correction, the judgment of the court is affirmed.
Corrected and affirmed.