| Ala. | Nov 15, 1895
The note declared upon is governed by the commercial law. — First National Bank of Montgomery v. Slaughter, 98 Ala. 602" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/first-nat-bank-of-montgomery-v-slaughter-6515139?utm_source=webapp" opinion_id="6515139">98 Ala. 602 (14 So. Rep. 545). Action upon it, therefore, must be prosecuted by the holder of the legal title. — Code, § 2594. A sworn plea of defendants denies that it had been assigned to the plaintiff.
The next plea is, that the defendants did not sign the note which is the foundation of the action, as a waive note or contract. The plaiutiff joined issue upon this plea. It is pleaded in bar of the whole action, yet it maj7 be regarded as simply controverting the fact of waiver of exemptions. Goetter, Weil & Co. v. Pickett, 61 Ala. 387" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/goetter-weil--co-v-pickett-6510197?utm_source=webapp" opinion_id="6510197">61 Ala. 387. By the issue thus presented, all ques'ions as to the rights of the plaintiff, as a bona ficle holder of commercial paper, for value and without notice, were eliminated and waived ; and the only question for decision under that issue, was, whether the defendants signed the note as a waive note or contract. The evidence was in direct conflict upon this question, and the court erred in taking the issue from the jury.
The next pleas, which were in short, by consent, were : (1) Failure of consideration, (2) Breach of warranty, and (3) Fraud; and upon them, issue was likewise joined. Here, again, all questions as to plaintiff’s protection under the law merchant, were waived. There was evidence tending to support, at least, the first and second of these pleas, and the court erred in taking the issue from the jury.
The defendants'by pleas to so much of the complaint as seeks to establish that they had waived their rights to their lawful exemptions against the enforcement of the contract in suit, controverted, as authorized by the statute, the fact of such waiver, alleging nothing as to plaintiff’s rights as a holder of the paper under the commercial law. As upon the other two pleas, the plaintiff joined general is^ue upon these; waiving, again, all protection under the commercial law. There was evi
The defendants, N. M. and J. L. Slaughter, in proper form, under oath, pleaded non esi factum. Issue was joined upon this plea. It was not disputed that D.L. Slaughter executed the note, for and in behalf of thes * two defendants, as their agent. There was evidence tending to show that he exceeded his authority, and executed a different contract from that' he was authorized to execute, induced thereto by fraud on the part of the agent of the payee, who took the note. There was no replication raising the question of plaintiff's protection against such excess of authority under the principles of. the law merchant. Nor was there a replication raising the question of subsequent ratification. Thus the only issue was whether the agent materially exceeded his authority. This should have been submitted to the jury, if, iudeed, the evidence upon it was not such as justified an affirmative instruction in favor of the two defendants.
Another plea sets up, in bar of the whole action, that the plaintiff discounted the note sued on at a greater rate of interest than eight per cent, per annum. We suppose this plea is based on section 4140 of the Code of 1886, which provides that, “any banker who discounts any note, bill of exchange, or draft at a higher rate of interest than eight per cent, per annum, not including the difference of exchange, is guilty of a misdemeanor,” as that section was construed in Youngblood v. Birmingham Trust and Savings Co., 95 Ala. 521" court="Ala." date_filed="1891-12-15" href="https://app.midpage.ai/document/youngblood-v-birmingham-trust--savings-co-6514712?utm_source=webapp" opinion_id="6514712">95 Ala. 521. As the National Banking Act imposes a very severe penalty upon any bank not organized under it, for using, in its title, the. term, “National Bank,” we will assume that the plaintiff is a National Bank, organized under that act. Being so, it is not amenable to said section 4140 of the Code.. The penalties for such usurious discounts are provided! by the National Banking Act; and1,- in an- action on the discounted paper, the plaintiff is entitled to recover the principal, less the amount of the interest unlawfully reserved. — Farmers and Merchants National Bank v. Dearing, 91 U.S. 29" court="SCOTUS" date_filed="1875-10-25" href="https://app.midpage.ai/document/farmers--mechanics-national-bank-v-dearing-89142?utm_source=webapp" opinion_id="89142">91 U. S. 29. That case leaves, it an open question whether a recovery may be had of interest on the principal so reduced, after the maturity of the note. The-penalties which the said banking act provides may be-
We remark that some of the pleas we have noticed are subject to demurrer. They should be put in proper shape on another trial; and if the plaintiff desires to invoke the protection of the law merchant, it should interpose its replications, properly presenting the facts. None of the pleas can be taken as confessing that plaintiff was a bona fide purchaser of the note, before maturity, for value, without notice of the defenses set up, for the reason that the complaint, while averring the other essentials, fails to aver that plaintiff purchased without notice of any equities or defenses. Whilst the proof of such notice to plaintiff, when, upon proper pleading and proof, it is shown that it purchased before maturity for value, must come from the defendants, yet it is necessary for plaintiff (o aver, with the other facts, the want of notice, which should, regularly, be done in its replications to the pleas, and not in the complaint.
We notice that the note, after its introduction, was excluded by the court as to two .of the defendants, and not again introduced, after the objection to it was obviated by further evidence. We mention this, that the oversight may not again occur.
Reversed and remanded,