97 Ala. 668 | Ala. | 1892
— This action is by Keith against White on a promissory note payable at a certain bank made by the defendant and endorsed by N. R. McDavid. Default was made in payment at maturity, the note was protested for non-payment and notices of protest given. The complaint claims the face of the note with interest, attorney’s fees therein stipulated for, and the costs of protest and notices thereof. The pleas were: 1, tender of the amount claimed except the fees for protest and notices, 2 that the defendant did not undertake and promise in the manner and forni alleged in the complaint, 3 that he did not owe the sum claimed or any part thereof in the manner and form alleged, and 4 that “as to the amount of protest fees claimed for the protest of the note sued on, defendant says that protest of the note sued on was waived by N. R. McDavid, the only endorser of said note, on the day of the maturity of saicl note and before its protest by the notary.” A demurrer to the 4th plea on the ground that it “was not sufficiently explicit, in that it fails to state when said waiver was made— whether before or after banking hours on date note becomes due,” was sustained by the City Court.
The term “protest” as employed in the plea is not to be understood as the declaration which is supposed to be made
The plea was bad, and the judgment of the court sustaining the demurrei; was free from error.
This action of the court left no plea on file relying specially on a waiver of protest and notice to reduce the recovery by the amount of the costs in that regard claimed in the complaint. If the fact of waiver of protest and notice even before maturity is a defense to a claim in an action on the note for the costs of protest and notice, it is affirmative defensive matter and is not put in issue by a general denial of the averments of the complaint. It is for the defendant to aver the fact of waiver by a special plea and to prove it as averred. Without such special averment, evidence of the
This, the only point of contestation in the case, being ruled against the appellant, it follows that we concur in the finding of the judge of the City Court on the facts, and affirm tlie judgment rendered for the plaintiff.
Affirmed.