Slaughter v. Green

Dec 16, 1920

5 Div. 747.

Reporters:: , ,
Before:: McClellan

Lead Opinion

McCLELLAN, J.

[1, 2] In liquidating the affairs of the Farmers’ & Merchants’ Bank of Goodwater, the then superintendent of banks, a state official, instituted this action against Maltón and Arrie Slaughter to recover on a note executed by the Slaughters to R. H. Crew, and averred in the complaint to be “the property of the Farmers’ & Merchants’ Bank.” Under the provisions of the act creating the banking department, the superintendent was authorized and directed to collect the debts, etc., of banks, the liqT uidation of the affairs of which became a duty under the law. Gen. Acts’ 1911, p. 50 et seq., particularly section 10, p. 61; Gen. Acts 1915, p. 88 et seq. In such circumstances, actions to collect debts and to render available assets of banks in course of liquidation are properly brought in the name of the superintendent. The complaint was amended in this instance so ‘as to substitute the superintendent in office at the time of the trial. It is plain from the caption, as well as from the body, of the complaint that this action was instituted and prosecuted by the superintendents in their official capacity. Ala. City Ry. Co. v. Heald, 178 Ala. 636, 59 South. 461; Alverson v. Little Cahaba Coal Co., 201 Ala. 123, 126, 77 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍South. 547 — among others. There is therefore no merit in the appellants’ contention predicated of the idea that the action was brought in the individual, not the official capacity of the person named as the superintendent of banks.

[3] In addition to general traverses, in different forms, the defendants (appellants) interposed pleas 4, 5, and 6, the fourth plea asserting payment before the suit was commenced and the other two, which were verified, averring that the bank did not own, was not beneficially interested in, the note sued on. These pleas (5 and 6) effected to cast the burden of proof, in .respect of ownership of the note, upon the plaintiff. Gode, § 3967. On motion of the plaintiff, the court struck from the file special pleas 7, 8, and 9. No prejudicial error resulted from this action of the court, since, if error affected this ruling, under pleas 5, 6, and 10, the defendant could have and really had the full benefit of such material matters as were alleged in these stricken pleas.

[4, 5] To secure the note sued on — a negotiable instrument — -a mortgage was given to the payee by the payors. The plaintiff offered these papers in evidence, the bill of exceptions reciting this:

“On the back of said mortgage, in the corner at bottom of page, the payee and mortgagee had written his name, R. H. Grew. The defendant objected to the introduction in evidence of said paper and said note.”

The court overruled the objection, and exception was reserved. According appropriate effect to the provisions of Rule 33 of Circuit Court Prac. (Oode, p. 1527), the objection was vain; no grounds therefor being stated. Furthermore, the court might have concluded from its inspection that the payee-mortgagee had indorsed the instrument in suit. Code, §§ 4985-4990, Indeed, subsequently, the witness Henry testified that indorsement by the payee was present on the note sued on, on February 26, 1917, when entries were regularly made on the books *253 of the bank of that day’s business. The appellants can take nothing by reason of the admission of the instrument in evidence, nor by reason of the refusal to exclude the papers on defendants’ motion. After some of the testimony had been taken, the bill of exceptions recites this occurrence:

“Counsel for plaintiff here stated to the court: ‘If the court please, it just occurred to me, I want to ask permission of the court to those pleadings filed by replying that the bank became the purchaser and owner of this paper ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍before March, for value.’ The defendant objected to this; the court overruled said ■ objection. To this action and ruling of the court the defendants then and there duly and legally reserved an exception.”

As appears, the sufficiency of the reply thus made was not tested by demurrer. It is now argued that the reply should have been reduced to writing. This ground of objection was not stated. The objection was doubtless regarded by the court as being addressed to the exercise by the court of the discretion the requested permission invoked. So interpreted, no error was committed in respect of the exercise indicated of the discretion invoked, no abuse thereof being made to appear. If the matter asserted was indefinite in its. allusion to the month of “March,” the defendants should have tested the sufficiency of the reply in an appropriate way.

[6-9] The witness Henry having testified that he made the entry on the “discount register” with reference to the not.e sued on, under the heading “Bill Receivable,” the particular entry in this “register” was properly received in evidence; the grounds of objection stated being without merit. Code, § 4003. The entry offered as from the “liability ledger” was objected to, but the bill of exceptions recites “no grounds stated,” and then, immediately succeeding, recites several grounds of objection. Where the recital of a bill of exceptions is equivocal, it- will be construed in favor of the action taken by the trial court, averting the imputation of error. 6 Mich. Ala. Dig. p. 552. The directly contradictory recital indicated requires the application of the rule stated. The matters presented in assignments numbered 8 and 10 are without merit for the like reason; and the motion to exclude those matters was well overruled for the additional reason that no ground for the motion was even intimated, thus rendering assignments numbered 9 and 11 unavailing to establish error. The matter recited in assignment -numbered 12, obviously pertinent to the issue of ownership vel non of the note by the bank, was elicited by a question to which no objection was interposed ; and hence the motion to exclude it was well overruled. Furthermore, no ground whatever was stated in the motion. Assignment numbered 13 is subject to the same criticism and is equally without merit.

[10] Assignment numbered 14 is based upon a motion that was descriptive merely— too indefinite to serve the purpose to reserve or to present anything for review.

[11] Since there was1 evidence tending to establish the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍acquisition of the note by the bank before its maturity — a state of fact the defendants’ evidence, -through Grew, went to contradict — it is evident that the defendants were not entitled to the general affirmative charge on the theory that it was shown that the bank did not own the note. when this action was commenced.

[12] If not otherwise entirely justified in refusing charge numbered 2, requested by defendants, that action of the court was proper in view of the fact that there was no evidence, under any theory presented by the record, that Epp>es became or undertook to become both the “seller and the purchaser” of the note at the same time. Besides the evidence tending to show the purchase of the note by the bank, there was evidence to the effect that R. H. Grew delivered the note and mortgage to Eppes for his disposition, in one event, to strengthen the impaired capital of the bank, and, in another event, to raise money wherewith to furnish means for a business transaction in which Eppes, individually — not as an officer of this bank —and Crew were or were to become jointly interested.

[13, 14] Special charges 3 and -i assume, in the broadest terms, to conclude and bind the bank, whose president Eppes was, by Eppes’ acts and relation to this note and mortgage under Crew’s testimony of what occurred between him and Eppes with respect to Crew’s delivery of this note and mortgage’ to Eppes; and so upon the theory that Eppes was acting in the premises as the president of the bank in such sort as to bind the bank. It not being indisputably proven that Eppes received the note as the representative of the bank, under the conditions testified to by Crew, these special charges would have invaded the jury’s province. Furthermore, in a special charge given at the instance of defendants the court instructed the jury as follows: ,

“Unless the jury believes from the evidence that R. H. Crew received money or its equivalent from the Farmers’ & Merchants’ Bank for the note sued on, then they should find for the defendant.”

The effect of this instruction was to restrict the issue of ownership vel non by the bank to a purchase of the note by the bank, thereby excluding any possible prejudice to defendants resulting from the defendants’ theories that the note was only conditionally committed to the possession of the bank, or that Eppes’ acts and agreement *254 with respect thereto ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍left the ownership of the note in Crew.

The judgment is not affected with prejudicial error. It is affirmed.

Affirmed. ‘

ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.

Addendum

On Rehearing.

McCLELLAN, J.

[15, 16] The several contentions for error argued in support of the application for rehearing have been duly considered in the light of that argument. The plaintiff, a state official, sued in that capacity only, averring that the note declared on was the property of the bank then in process of liquidation. The fourth plea alleged that the note had been paid before the action was commenced. The action was commenced on March 22, 1918, practically four months after the date of maturity of the note sued on. The verified fifth and sixth pleas, respectively, denied the ownership of the note by the plaintiff or the bank. The note was a negotiable instrument, and there was evidence tending to show its negotiation before maturity to this bank. The judgment recites that “issue was joined,” thus putting in issue, in addition to the result of the general traverses, the matters set up in pleas 4 to 6, inclusive; the burden of proof in respect of ownership being cast (by pleas 5 and 6) on the plaintiff, a burden that may have been met in respect of both the bank and the official (plaintiff) by showing ownership of the note by the bank prior to the assumption of its possession for the purpose of its liquidation. Plea 8 (stricken on plaintiff’s motion) averred that defendants had paid the note sued on before they had any notice that this ,note had been deposited with the bank as collateral security by the payee, Crew. The note here declared on being a negotiable instrument, the doctrine of Hart v. Adler, 109 Ala. 467, 19 South. 894, followed and applied in Stewart v. Bibb Co. Bank, 177 Ala. 507, 58 South. 273, is without appli cation. Payment of a negotiable instrument, to be effectual, must be made to the holder thereof, except in certain circumstances not presently pertinent to be restated. 8 C. J. pp. 598, 599; Crawford on Neg. Instr. pp. 112, 113; Snead v. Barclift, 2 Ala. App. 297, 56 South. 592; Sherrill v. Merchants’ Bank, 195 Ala. 175, 178, 70 South. 723. Hence, we may repeat what was said in the original opinion, that the unrestricted averment of payment in plea 4 was sufficient to admit any material matter sought to be asserted in plea S, stricken, on motion, without error of prejudice to appellants.

[17, 18] The court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍has reconsidered its ruling in the original opinion on the oral replication, and remains convinced that no error was committed. No demurrer to the rexfiication was suggested or filed. Its sufficiency was not brought to test. There was no suggestion, even, that it should have been reduced to writing. The record shows only an objection, no grounds being stated. The trial of the cause liroceoded on a theory consistent with matter of avoidance asserted in the oral replication, culminating in the giving, at appellant’s request, of the special charge quoted in the original opinion. There was evidence tending to show that the payee received from the bank, value for the negotiable note before its maturity. Whether it was sufficient to invite the conclusion hypothesized in the special given charge quoted in the original opinion was a question due to be submitted to and decided by the jury; and the proper discharge by the jury of this duty depended upon the credence to be accorded the testimony of Exipes and the books of the bank.

In the state of the evidence, the trial court cannot be held to have erred in overruling the motion for new trial. Cobb v. Malone, 92 Ala. 630, 9 South. 738.

The application for rehearing is denied.