Thompson v. Armstrong

5 Ala. 383 | Ala. | 1843

CLAY, J.

The first assignment of error, brings into view the competency of George H. Patillo, one of the makers of the note sued on, to give evidence impeaching its consideration, and the genuineness of the defendant’s signature. The same question, in a qualified form, came up in the case of Ross & wife v. Wells. [1 Stewart’s Rep. 139.] That was an action on a promissory note, given by Mrs. Ross, while sole, and Wm. J. McCarroll, payable to Wells; the writ issued against Ross & wife, and McCarroll, jointly, but was not executed on McCarroll, and discontinued as to him. The defence relied on was non as-sumpsit, failure of consideration, and fraud. On the trial, the defendants below offered McCarroll as a witness to prove, that the consideration of the note was certain negroes sold to Mrs. Ross, .warranted sound, but that one of them was unsound and of no value. The circuit court held the witness incompetent; excep-. tion was taken, and it was afterwards assigned for error in this court. But the judgment was affirmed — the court deciding that the circuit court was right in excluding the witness — and generally, “ that one maker of a note cannot be introduced by another, to invalidate the instrument.”

In a subsequent case, [Whatley and Gragg v. Johnson, 1 Stewart, 498,] the same question arose. The plaintiff offered What-ley as a witness to prove the execution of the instrument, sued on, by Gragg. Though objected to by the defendant, the court admitted the witness, and this opinion was assigned for error. The court held the witness incompetent; that the court below erred in ádmitting him; and on that ground reversed the judgment.

Both those cases, however, showed that the witness was interested in the event of the suit, in which he was called to testily. In the first case, McCarroll, the witness might have been held liable to contribute his portion of the amount recovered on the contract, which was joint, or his evidence might have lessened that amount. In the latter, the court expressly placed it on the ground of Whatley’s interest, which indeed, is fully apparent from the facts of the case, as stated. In later cases, the doctrine has frequently been laid down, that “ the mere fact, that the witness is a party to a negotiable paper, does not disqualify him. Such is the established law in tins State.” [Adams v. Moore, 9 Porter, 406; Griffin v. Harris, Id. 225; Davidson v. Love, 1 Ala. Rep. N. S. 133.]

In this case, the witness, Patillo, although appearing on the face of the note, as a maker, was not, when offered, a party to the suit; nor directly interested in its event. The objection went to his Credit, not to his competency, and he should have been admitted. Therefore, in this opinion of the court, there is error.

2. The second assignment alleges that the court erred in refusing to give the instructions first asked by defendant’s counsel— that if the jury believed said note was made for discount in said Bank, but was not discounted, the plaintiff could not recover, unless said Armstrong, or Sutlif had proved, that one or the other of them was a creditor of some of the makers of the note, or otherwise a honajide holder of said note for a valuable consideration.

This court held, in the case of the Planters’ and Merchants’ Bank, for the use of Sayre, Converse & Co. v. Blair & Morroh, that although a note may have been made with a view to have it discounted in a Bank, and may not have been discounted, but is afterwards put in circulation, that it is valid and binding on the parties.

This court has, also, held at a very early day, and has repeatedly recognized the decision since, that a promissory note itself is evidence of a consideration, although a want of consideration may-have been pleaded. In the case of McMahan v. Crockett, [Minor’s R. 362,] the action was debt, on a promissory note — the pleas nil debit, and want of consideration — the circuit court charged the jury, that unless the plaintiff introduced otherevidence of consideration, the note alone having been introduced, they must find for the defendant. The jury did find for the defendant; the case came here on error; and this court held the charge of the circuit court erroneous, and reversed the judgment.

3. The third assignment is, that the court erred in refusing to give the charge secondly requested; that, if they believed from the proof that the note was obtained fraudulently from the defendant, or was fraudulently circulated against him, that Sutlif could not recover.

To entitle a party to a charge from the court, there must appear in the bill of exceptions some evidence, on which to predicate it, or some evidence to which it may have relation. The evidence before the jury has already been stated, and it has been seen, that this court has held, that, notwithstanding such facts as are set forth, the holder of such a note would be entitled to recover ; it follows, necessarily, that there is no evidence to sustain a plea of fraud, if pleaded; which, however, is not the fact. It will not do to call on a jury, even byjjlea, to pass on such general allegations, as are here made the ground of exception. In the case of Giles v. Williams, use, &c. [3 Ala. Rep. N. S. 318,] it was held that a plea alleging that a bond was obtained by « fraud, covin, and misrepresentation,” is clearly bad. The plea, in such-a case, ought to specify, in what the fraud consists, otherwise, it would certainly amount to no notice to the party whose rights are to be affected.

4. The last assignment is, that the court erred in the charge given; that the face of the note was prima facie evidence that the defendant owed the sum of money therein specified, and that unless the defendant had proved a fraud in the circulation of the note, and that Sutlif was connected with the fraud, they must find for the plaintiff. This assignment is already sufficiently met, by the views presented on the other assignments. So far as there was evidence before the jury, the charge was correct.

Let the judgment be reversed, and the cause remanded.