Talladega Insurance v. Landers, 43 Ala. 115

43 Ala. 115 | Ala. | 1869

PECK, C. J.

The appellee commenced his suit, in the circuit court of Talladega county, in the nature of an action of assumpsit, founded upon a certificate of deposit, in the words and figures following:

“ 313 00. Talladega Insurance Company, Talladega, Alabama, February 22d, 1861. Mr. J. B. M. Landers has deposited in this office, in gold coin, three hundred and thrteen dollars, to the credit of himself, payable on the return of this certificate, properly indorsed. James G. L. Huey, Secretary. No. 1417.”

The complaint contains two counts on this certificate, and a common count, for money had and received. The appellants are sued as a body corporate and politic, created by law. The minute entry of the judgment shows, that at the spring term of said court, in the year 1868, a trial was had before a jury, and there was a verdict and judgment for the appellee, for the sum of four hundred and seventy-one dollars and fifty-nine cents, and costs of suit.

On the trial, a bill of exceptions was signed and sealed, at the instance of the appellants, which sets out the proceedings at length, and shows the several objections made by them. The errors assigned in this court, are founded upon this bill of exceptions.

The first question made in the bill of exceptions, grows out of a motion made by Geo. S. Walden, an attorney of the court, to withdraw the appearance of the defendants. The bill of exceptions states, that the case was called for trial in its order on the docket, and the plaintiff’s counsel announced himself ready for the trial, when the said Geo. S. Walden, one of the law firm of Walden & Bowie, called on the plaintiff’s counsel for the papers; then plaintiff’s counsel called on the clerk for the summons and complaint; the clerk, after diligent search, could not find them in his office; said Walden then inquired of the court whether Walden & Bowie appeared for the defendant, and was informed by the court that they did ; said Walden then examined the appearance, entered on the docket, and said that it was neither in his handwriting, or of A. W. Bowie, his co-partner, and that he supposed there was some mistake about it; that he had no recollection of having entered the appearance, or of having authorized it to be done, but that he would not state positively that he had not done so; and asked leave to withdraw the appearance, but the counsel for plaintiff objected. By reference to the trial docket of the last fall term of the court, opposite the name of the defendant, where the case stood on the trial docket, on the left hand side, where appearances are entered by counsel, it appears that the letters W. & B., in the handwriting of the presiding judge, and on the right hand page of the trial docket, and opposite said case, was an entry, in the handwriting of the presiding judge, “ continued by the plaintiff,” and the case appeared, from the minutes of the last court, to have been continued by the plaintiff; that there was no other law firm in the town of Talladega to which the letters W. and B. would apply, except Walden and Bowie ; that the entry of the appearance of the defendant on the trial docket, at this term of the court, is in the handwriting of the clerk of the court, and is entered thus, “ Walden and B.” The clerk, supposing that the letters W. & B. were intended for Walden & Bowie, carried forward the entry of the judge, “ W. & B.,” Walden & B.

Said Walden, on cross-examination, stated that he and Bowie were attorneys for the Talladega Insurance Company, and were retained by said company to prosecute and defend all litigated cases for the company.

B. H. Isbell, one of the attorneys for plaintiff, was examined and stated, that according to his recollection, when this ease was called for trial at last term of the court, that counsel appeared and represented the defendant, and that not being prepared to prove a demand and refusal of payment on the cause of action, he asked and obtained a continuance.

A. W. Bowie, the law partner of Geo. S. Walden, stated, that if he had ever entered an appearance, or authorized it to be done for the defendant, he had no recollection of it; this was all the evidence with regard to the appearance. The court refused to allow the appearance to be withdrawn» and the defendant excepted.

The appearance for the defendant, sought to be withdrawn, is certainly not entered in conformity to the rule on this subject, and if the plaintiff had made a timely motion to strike it out, it would probably have been granted ; but it is altogether a different thing, when the motion comes from the defendant to withdraw his appearance. We think it very clear, that the appearance entered in this case, was entered by the counsel of the defendant, or one of them, or by the presiding judge, at their request; most probably, by the judge. It is a common thing, when a case is first called, for attorneys, especially attorneys for defendants, to ask the court to enter their names on his docket as attorneys for the defendant, and it is done, as a matter of course ; every one who has practiced long in the circuit courts, knows this to be so. Where an attorney for a defendant enters his name as such, without complying strictly with the rule, or has it so entered by the clerk or judge, the irregularity, whatever it may be, is the fault of the attorney, and not of 'the plaintiff, and neither the defendant nor the attorney should be permitted to take advantage of it, to the prejudice of the plaintiff. The time when the motion was made in this case, and the circumstances attending it, show very clearly to our minds, that .the motion would not have been made, but for the fact, that the papers, when called for, happened to be missing, or rather, could not be found. The plaintiff’s attorney, when the cause is regularly called, announces himself ready for trial; one of the defendant’s attorneys is present, and calls on the plaintiff’s attorney for the papers, makes no objection as to his appearance, but, as soon as it is discovered that the papers can not be found, he, then, for the first time, thinks there must be some mistake about his appearance, and moves the court for leave to withdraw it. He, manifestly, believed, that in the situation of the case, when the motion was made, if granted, it would have the effect to benefit his client and prejudice the plaintiff, and this he should not be permitted to accomplish, by taking advantage of his own neglect or fault. By the loss of the papers, if the appearance was withdrawn, there would be nothing to show that the defendant was in court, and the plaintiff, for that reason, might fail in his case altogether, or, at least, have to submit to a continuance. We, therefore, hold, that the court was right, under the peculiar circumstances, in refusing the motion to withdraw the appearance of the defendant, by his attorneys, although it was irregularly made. The case in 2 Porter, referred to by appellant’s counsel, is not at all like this case; there, the question about the appearance, grew out of a motion by plaintiff to reject a plea in abatement, because it was not filed in time.

After the motion to withdraw the appearance of the defendant’s attorneys was overruled, the plaintiff moved the court for an order to substitute papers — that is, to substitute a summons and complaint, alleging that the papers in the case were lost. To sustain his motion, he proved by the clerk of the court, that he had carefully examined his office for the summons and complaint, and could not find them. He also proved by Taul Bradford, one of the attorneys of the plaintiff, that he had searched for the summons and complaint, in the office of the plaintiff’s attorneys, and that he could not find them among their papers, or in their office. He also stated, that in the fall of 1865, he made out a summons and complaint on the certificate of deposit sued on, and gave it to the clerk of the court for issuance by him ; that he recollected seeing the said summons and complaint, after the return term of the writ, and examining the case with reference to a trial of it, at the fall term of the court, 1867, and deciding, from an inspection of the summons and complaint, that the case stood for trial at that term of the court; though he could not state then, as matter of recollection, that there was any return of, executed by the sheriff on it; that the summons and complaint, which plaintiff proposed to substitute for the original, was as exact copy as he was able to make. This was all the evidence with regard to the loss and contents of said summons and complaint.

The defendant objected to the substitution of said summons and complaint; the court overruled the objection; and ordered that said copy of said summons and complaint be substituted for the originals, and the defendant excepted. The amended summons and complaint is set out, and consists as above stated, of two counts on the certificate of deposit, and a count for money had and received. The objection to the substitution, is a general objection. It does not state whether it was because the proof of the loss and search for the original summons and complaint was insufficient, or whether the copy offered to be substituted, was not a substantial copy of the originals. There was no error in overruling the objection, because of its generality; it should have been stated, at least with some particularity ; the grounds of the objection, whether it was because the evidence of the loss and search was insufficient, or, that the proposed copy to be substituted, was not a substantial copy of the originals. The mind of the court should have been drawn to the reason or reasons for the objection ; but we hold the objection was properly overruled, whether it was based upon the insufficiency of the evidence of the loss and search, or because it was not shown to be a substantial copy of the original summons and complaint.

The clerk proved the originals were lost, and that he could not find them after a diligent search in his office, nor could they be found by the plaintiff’s attorneys among their papers, or in their office. The complaint in this ease was founded upon the certificate of deposit, with a count for money had and received. There could be little, if any more difficulty in making out a substituted complaint on a plain promissory note, and it would have been hard to make a mistake as the money count. For these reasons, we hold that less evidence was required to prove the contents of the original complaint, than if it had been a complaint complicated in its character, and requiring greater skill in framing it. Section 648 of the Revised Code, says : “ If the record of any judicial proceeding, suit, judgment or decree of any justices, circuit or chancery court in this State, or any part thereof, has been, or may be lost, burned or otherwise destroyed, the same shall be substituted, by order of such court, upon the best evidence that can be adduced, and which shall be satisfactory to the court, of the former existence and contents of such judgment or decree; and when so substituted, shall have the same force and effect, with the original judgment or decree.”

We hold that this section, if not the letter of it, at least the spirit of it, authorized the substitution in this case. The rule adopted at the last July term of this court, although made after the substitution in this case, and not properly applicable for that reason, nevertheless, shows the mind of the court on this subject. It says, “ whenever a party shall make, or desire to make, a motion to substitute a paper, in a pending suit, or motion, which has been lost or destroyed, or to substitute a record, or any part thereof, which has been lost or destroyed;” * * * * * * * * * “ the court before which the motion is made, may make such order or decree, or render such judgment on the motion, as in its discretion may seem just and proper.” Besides, courts of general jurisdiction have an inherent power to substitute records and papers of their respective courts, that are lost or destroyed.—McLendon v. Jones, 8 Ala. 298; Adkinson et al. v. Keel, use, &c., 25 Ala. 551, and Pruit v. Pruit, Adm’r, at this term. The court below, therefore, committed no error in permitting the summons and complaint to be substituted.

After the summons and complaint were substituted, the defendant appeared and pleaded : 1. The general issue, and nul tiel corporation, on which pleas the plaintiff took issue ; these pleas appear to have been made in short, by consent. Before issue was taken upon these pleas, the plaintiff demurred to the plea of nul del corporation, which was overruled. The trial then proceeded on the issues joined on the two pleas. On the trial, the plaintiff read in evidence two private acts of the legislature, one of the 13th of February, 1856, entitled an act to incorporate the Talladega Insurance Company, (Acts of 1855-6, p. 261;) the other approved the 19th January, 1856, entitled an act to incorporate the Tuskegee Insurance Company, (Acts of 1655-6, p. 257.) The last named act is drawn out at length, incorporating certain persons, and such other persons as might thereafter become associated with them, and setting out in full the powers of the corporation, ampng which are the powers to purchase, hold and enjoy real and personal estate of any description whatever, and to dispose of the same at pleasure ; to receive from any free person or persons, or from any corporation, deposits on trust; to borrow money and issue their bonds therefor ; to invest its money and property in anything, and in any manner, which would be lawful for a citizen to invest money or property in ; to loan its money or property to any person or persons, or corporation, on any security which it may think proper ; to purchase, discount, and sell bills of exchange and promissory notes; to receive and deposit for collection promissory notes and bills of exchange, and may charge for such collections such per cent, as is usual in similar chartered insurance offices, or private banking houses ; provided, that the said corporation shall not make or issue any bills, bonds, notes, or other securities, to circulate in the community as money ; and provided further, that said corporation shall be subject to the laws of this State against usury. The first named act is a short one, consisting of but one section, and after declaring certain persons, and such others as may thereafter become associated with them, a body politic and corporate, by the name of the Talladega Insurance Company, says, “ and by that name, shall be entitled to all the privileges 'invested with all the powers, and subject to all the restrictions as are conferred and imposed upon the Tuskegee Insurance Company.”

The plaintiff then introduced one F. M. Thomasson as witness, who stated, in substance, that he was acquainted with the Talladega Insurance Company ; that it had a place of business, in the town of Talladega, and had such place of business there for several years; first in the counting-room of James G. L. Huey’s store-house, and after-wards in a newly erected brick building, known as ' the Talladega Insurance Company buliding ; that it continued to transact business there for several years, doing a banking and exchange business, buying and selling bills of exchange, receiving money on deposit, and giving certificates of deposit therefor; that James G. L. Huey acted as the secretary of the company, and transacted most, or all of the business he knew anything about. The defendant declined to cross examine the witness, but objected to the evidence, and to each divisadle part thereof; the objection was overruled, and defendant excepted.

The plaintiff then proved the handwriting of said James G. L. Huey to the certificate of deposit declared upon, and offered to read it to the jury ; the defendant objected, the objection was overruled, and the certificate was read to the jury, and defendant excepted.

The plaintiff then offered himself as a witness ; the defendant objected to his examination, on the grounds: 1. That plaintiff was not competent as a witness for himself, at the commencement of the suit; 2. “ The plaintiff is not a competent witness in this case, against the defendant, in the capacity in which the defendant is sued.” The objections were overruled, and defendant excepted. The plaintiff, in substance, stated that on the 22d of February, 1861, he deposited with the Talladega Insurance Company, the sum of three hundred and thirteen dollars in gold coin; that said James G. L. Huey, as secretary of said company, gave him the certificate of deposit sued on ; this was done at the office and place of business of said company, in the town of Talladega; and that about December, 1862, in the office of said company, he demanded of said Huey, as secretary of said company, payment of the amount due on said certificate, which he refused to pay. The defendant objected to this evidence, his objection was overruled, and he excepted. No evidence seems to have been offered by the defendant.

The defendant asked the court to charge the jury :

1. That “ the certificate of deposit read in evidence does not entitle the plaintiff to a recovery under the issues.”

2. “ That if the jury believed from the evidence, that the defendant had a legal existence under said acts of the legislature, then the defendant is not bound by the certificate introduced as evidence by the plaintiff.”

3. “ That the defendant, as a corporation, has no power, under said acts of the legislature, to receive money on deposit, and the defendant is not bound by said certificate, although the money may have been deposited in the office of the defendant.” .

4. “ That the plaintiff can not recover on the common counts in the plaintiff’s complaint.”

5. “ To constitute a corporation under said acts of the legislature, the jury must be satisfied by the evidence, that the identical persons named in the act of the 19th of January, 1860, or a majority of them, accepted the provisions of said act, and opened books of subscription to the capital stock of the company in Tuskegee, and obtained the subscription of stock required by said act, and organized by electing directors and a president, as required by said acts.”

6. That “ to constitute a corporation under said acts of the legislature, the jury must be satisfied by the evidence, that the identical persons named in said act of the 13th February, 1856, or a majority of them, accepted the provisions of said act, and opened books for subscription to the capital stock of said company, and obtained the subscription of stock required by said act, and organized by electing directors and a president as required by said act.”

These charges were severally denied, and the defendant excepted. The several exceptions taken on the trial, and the refusal of the court to give the charges asked by the defendant, are assigned as errors, <fcc.

The two first objections made in the bill of exceptions, are already disposed of — that is, the objection growing out of the motion to withdraw the appearance of defendant’s attorneys, and the objection as to the substitution of the summons and complaint. The next objection is, as to the evidence of the witness, Thomasson, examined by the plaintiff. After the examination of this witness by the plaintiff, the defendant declined to cross-examine him, but objected to his evidence, “ and each divisable part thereof.” This is neither more or less than a mere general objection. From the language of the objection, the judge could not know why, or for what reason it was objected to ; the ground or grounds of the objection should have been disclosed. For this reason, if for no other, the objection was rightly overruled. It was certainly proper for the plaintiff, if the defendant had exercised the privileges conferred by the act of the legislature, had a regular place of business, and a secretary who transacted the business of the company, to prove these facts. This was not only proper evidence, but it was competent to prove it by parol. The court was, therefore, right in overruling this objection, on both of the reasons here stated.

The next objection was to the reading of the said certificate of deposit. The handwriting of James G. L. Huey, who signed it, as secretary, was proved; that made it competent for the plaintiff to read it, unless some special reason existed why it should not be read. No such reason is shown by the objection. The objection is a mere general objection, and was properly overruled for that reason. We hold it was altogether proper to permit the certificate of deposit to be read.

The evidence of the witness Thomasson, and the evidence given by the plaintiff himself, sufficiently proved, at least prima facie, that Huey, by whom the paper was signed, was, or, at least, acted for years, without objection on the part of the defendant, as secretary of the company; besides that, he was one of the corporators named in the charter. The certificate of deposit was also good evidence under the common count, for money had and received; it showed the defendant had received the plaintiff’s money, and promised tó return it, on the return of the said certificate. There is no error in overruling this objection.

The next objection is, that the plaintiff was not a competent witness in his own behalf. The defendant makes two points in this objection, both to the competency of the the plaintiff: 1. That he was not competent when the suit was brought; 2. That he was not competent because the defendant was a corporation. We think there is nothing in either of these points. It is enough that a witness is competent, when offered. The other, that the defendant was a corporation, and, therefore, the plaintiff was incompetent, has no force in it now; before the passage of the act of the 14th February, 1867, the objection would have been a good one. That act clearly changed the law on this subject, and makes the plaintiff a competent witness, except in cases against executors and administrators. The cases referred to by the appellant’s counsel, are cases under the old law, and not applicable as the law now is. The reason that led the court to hold in those cases, (and we think properly,) that the plaintiff was not competent, in cases against corporations aggregate, is, “that a corporation aggregate, could not take upon itself an oath, and upon that oath swear that the testimony proposed to be given is untrue. The defendant also objected to the evidence given by the plaintiff; but the objection is a general one, and for that reason was rightly overruled. The evidence, however, is proper evidence under the issues in this case; at least, a part of it is so ; it tended to prove, and we think did prove, that the company exercised the privileges granted in its charter; that said Huey was the secretary of the company, and did their business for several years , that he received the money deposited, and gave the certificate of deposit, as such secretary. It also proves the demand of payment was made of him, as secretary. But the appellant says, the evidence does not show he was secretary at the time the demand was made. It certainly tends to prove it; but if he was secretary when the deposit was made, and ceased to be so before the demand, the defendant should have proved it; it is matter of defense. The plaintiff not only states that he made the demand of him as secretary) but that it was made in the office of the company.

It is also objected, that the act incorporating the Talladega Company never conferred any powers on that company ; never became a vital, living act, because it was not shown that the act incorporating the Tuskegee Company was ever accepted by said company, or that said company ever acted under it; never opened books of subscription, &c.; never elected a directory, or a president; that the Talladega act depended upon the Tuskegee act; to use the language of appellant’s counsel, “ It was a mistletoe growing on and depending for its life on the Tuskegee act.” We are, however, of the opinion that it is altogether immaterial what the Tuskegee Company did, or did not do; it in no way affects the rights and privileges of the Talladega Company, under their charter. It is pressed upon the court, that to constitute a corporation, under said acts, it was necessary that the identical persons named in said acts, or a majority of them, should have accepted the provisions of said acts; opened books for subscription "to the capital stock of said companies; obtained the subscriptions of stock required, and organized, by electing directors and a president, as required by said acts. But, we hold that these acts, by their own vigor, made the persons named in each a body politic and corporate. After naming the persons, each act declares that they, “ and such others as may hereafter become associated with them for that purpose and their successors, are hereby declared and created a body politic and corporate.” They therefore become corporations immediately on the passage of the said acts ; but to exercise the privileges, it was necessary for them to organize by obtaining stock, &c., and electing a board of directors and a president. These acts are altogether unlike acts that authorize persons to become a corporation, by doing certain things; in such cases, the things to be done are conditions that must be complied with before they can become a body corporate. As a general proposition, it is true that the charter of a corporation must be accepted, but in cases of private corporations like these under consideration, created for individual benefit, the presumption is, that they are created at the instance and on the request of the parties to be benefited thereby, and, consequently, are accepted by them. If, therefore, they are found exercising the privileges granted, it will be almost conclusive evidence of the fact of acceptance. This view disposes of the fifth and sixth charges asked by the defendant and denied by the court.

We think all the charges were properly refused. The first asked the court to charge the jury that the certificate of deposit, read in evidence, did not entitle the plaintiff to a recovery. We believe the said certificate, with the other evidence, did authorize the jury to find for the plaintiff. If the object of the charge was to instruct the jury that the certificate, by itself, did not entitle the plaintiff to recover, it should have been so framed, and, if it had been so framed, it should have been refused ; it would then have been based on a part of the evidence only, and might, and most probably would have misled the jury. The second charge was properly refused, because, if the company, under the acts of the legislature, was a living corporation, then it was clearly bound by the certificate of deposit read in evidence by the plaintiffs. We hold in this opinion that the evidence was sufficient, at least, to go to the jury, to show them that the company accepted their charter, acted under it, and that said James G. L. Huey was their secretary, and consequently authorized to bind the company, unless the charter did not permit’ the company to receive money on deposit, or it was an act prohibited by it. It is insisted by appellant’s counsel, that the receiving the deposit in this case and giving the certificate, is an act of banking, and prohibited by the charter, which says, “ that said corporation shall not make or issue any bills, bonds, notes or other securities to circulate in the community as money. It is true, banks do receive money on deposit and give certificates therefor, and in a qualified sense these are acts of banking, but not acts exclusively confined to banks, and any merchant or other citizen may do the same thing. It is no doubt a well settled principle, that the authority of corporations is limited by their chartered powers, and the proper and necessary means of executing those powers, and that all contracts of corporations, which they have not power to make, are void, and courts of justice will not enforce them.—Grand Lodge of Alabama v. Waddell, 26 Ala. 313. But, we hold that a fair and reasonable construction of the powers granted to this company, authorizes it to receive money on deposit and give certificates therefor, and this power is not affected by the proviso in the fifth section of the act that prohibits the corporation from issuing bills, bonds, notes or other securities to circulate in the community as money. Said fifth section authorizes the company “ to receive from any free person or persons, or from any corporation, deposits on trust.” What is a deposit on trust ? There is nothing in the act itself, or in the record, to show what it is. We learn from the books that there are two kinds of deposits — one called a general, and the other a special deposit. A special deposit is where the specific money, the very silver or gold coin, or bills deposited, are to be returned, and not an equivalent. A general deposit is where the money deposited is not itself to be returned, but an equivalent in money, (that is, a like sum is to be returned); such a deposit is said to be equivalent to a loan. The title to a special deposit remains, notwithstanding the deposit, in the depositor; in a general deposit, the money deposited becomes the money of the depositary. — Hedgwood & Ho-man’s Manual for Notaries and Bankers, § 19. We hold that “ deposits on trust,” mentioned .in the act, may embrace both general and special deposits; the company, though called an insurance company, has many powers conferred upon it, not necessarily connected with the business of insurance. It may not only receive deposits, but it has the power to invest its money and property, in any thing, and in any manner, which it is lawful for a citizen to invest money or property in. It has the power also to purchase, discount and sell bills of exchange and promissory notes. The discounting of promissory notes and bills of exchange is certainly a banking power, and one largely exercised by all banks. From these considerations, we hold the prohibition in the act is to be confined to the issuing of bills, bonds and notes, to circulate in the community as money ; but, it is said, certificates like the one in this case may pass from hand to hand, and in this way circulate in the community as money. True, they may pass from hand to hand, but they can hardly ever circulate, in any proper sense, in the community, as money. In the first place, if issued on real deposits, the number can never be sufficient to become a currency among the people. In the second place, they will not be of the proper sums to circulate as money. The circulation in the community, when it consists of paper, consists, at least the larger part of it, in bills from one to ten dollars, and certificates on real deposits will seldom, if ever, be of such sums. The prohibition in the act, therefore, does not embrace this certificate. It was lawfully issued, and is obligatory on the company ; this being so, the fourth charge, that the plaintiff could not recover on the money count, was properly refused. The certificate is evidence of money had and received, and if there should appear on the trial, a variance in the description of the certificate, the plaintiff might recover on the count for money had and received. The third charge, if the view we have taken of this case be correct, was rightly overruled ; it is, that the defendant, as a corporation, had no power to receive money on deposit. The elaborate manner in which this case was argued by the appellant’s counsel, has induced us to examine, with the greater care, the authorities referred to and the objections made by him, but the examination has failed to satisfy us that there is any available error in the record. The judgment of the court below is therefore affirmed, with costs.

Note by Reporter. — At a subsequent day of the term, the following response was made to appellant’s application for a rehearing. PECK, C. J.

The application for a rehearing has been carefully examined, but the court remains satisfied with the opinion delivered ; a rehearing is, therefore, denied.