Carter v. Odom , 121 Ala. 162 ( 1898 )

TYSON, J.

— Tbe note sued upon was a negotiable instrument and governed by tbe commercial law as to days of grace, protest and notice. — Code, § 869, and authorities cited under it.

Tbe record shows that tbe defendants admitted in open court that the note was given by the maker for borrowed money and tbe indorsements by tbe defendants were executed by them contemporaneously with its execution by tbe maker. There was then a valuable consideration for their indorsements and tbe statute of frauds has no application. Tbe consideration expressed in tbe note will support the contract of indorsement and it need express none other than tbe consideration which the note upon its face implies to have passed between tbe original parties.—Moses v. Lawrence County Bank, 149 U. S., 298; DeWolf v. Raband, 1 Pet., 476; Read v. Rowan, 107 Ala. 366; Phillipe v. Harberlee, 45 Ala. 597. And when a creditor takes a note of bis debtor, with accommodation indorsements, in payment of an antecedent debt, be is a purchaser for value in due course of business, equally, as if be bad advanced money on tbe faith of it. When such indorsement is made in blank to be used by tbe maker in tbe payment of an antecedent debt due tbe payee, tbe indorser is liable to tbe payee, although tbe note was not put in circulation by him.—Marks v. First National Bank, 79 Ala. 550.

Such a contract of indorsement was not a collateral promise to answer tbe debt, default or miscarriage of the maker, but was an original, substantive contract founded on a present, valuable consideration moving from tbe payee to tbe maker.—Dunbar v. Smith, 66 Ala. 490; Rutledge v. Townsend, 38 Ala. 706; Underwood v. Lovelace, 61 Ala. 155; Espalla et al. v. Wilson et al., 86 Ala. 487; Thornton v. Guice, 73 Ala. 321.

If there was error in sustaining the demurrer- to the pleas of the statute of frauds, it was without injury, since under the undisputed facts, matters set up in them would have been no defense.

The court sustained a demurrer to a plea of defendants .alleging they were never legally notified of the protest of the note. The count of the complaint to which this plea was interposed as a defense expressly averred, as it was necessary to have been done to state a good cause of action, a presentation to the maker of the note for payment, its refusal after demand, and a protest for non-payment and notice to .the defendants. This special plea was simply the general issue and there was no error in the ruling of the court in sustaining the demurrer to it. The defendants being indorsers, though their indorsement was what is known as an “irregular indorsement” were entitled to the same protection as to protest and notice as are indorsers of negotiable- instruments made in the regular manner and mode. In other words, the payee cannot be permitted to recover of them without proof of demand for payment of the maker at maturity and due notice of non-payment.—Hooks v. Anderson, 58 Ala. 238; Milton v. DeYampert, 3 Ala. 648; Price v. Lavender, 38 Ala. 289.

The note being made in Jasper and payable there, no protest for non-payment was absolutely necessary to bind the defendants as indorsers. A notice given to them by the holder or his agent of its dishonor and that he looked to them for payment was all that was required. — 3 Randolph on Com. Paper, 1144; Shelton v. Carpenter, 60 Ala. 201; Knott v. Venable, 42 Ala, 186; Leigh & Co. v. Lightfoot, 11 Ala. 935.

But the protest of such an instrument and the notice to them will operate to hold the indorsers if they received the notice. . The contention here is that the mailing of the notices was insufficient; that the defendants were entitled to personal notice of the dishonor. This is true as a general rule where the holders and indorsers live in the same place, provided the custom is not otherwise.—Tyson v. Oliver, 43 Ala. 455; Isbell v. Lewis, 98 Ala. 550; John v. City National Bank, 57 Ala. 96. But mailing notices of the protest is sufficient if mailed within the prescribed time where the holder and indorsers reside in different places. 2 Daniel on Neg. Inst. (3rd ed.) § 1021; 3 Bandolph on Com. Paper; Philipe v. Harberlee, 45 Ala. 597; Bibb v. McQueen, 42 Ala. 408; Gindrat et al. v. The Mechanics’ Bank of Augusta, 7 Ala. 324; Greene v. Farley, 20 Ala. 324; Tyson v. Oliver, supra. And this is the rulethoughtheholderresides in the town where the instrument is protested and the indorsers, though residing in another, receive their mail through the postoffice of the same town in which the holder resides, or if the notice is in fact received by the indorsers, though they reside actually in the same town with the holder, and it is shown that the mailing of the notice is the customary mode of giving such notice.—Greene v. Farley, 20 Ala. 322; Roy v. Porter, 42 Ala. 327; Gindrat v. The Bank, supra; Isbell v. Lewis, supra; John v. City National Bank, supra.

There is no evidence in the record as to the residence of the holder of this note, the appellee, but whether we will presume that he resided at Jasper is not necessary, to decide under our view of the law of the case in the manner in which the question is here presented. Nor does it become necesary to decide between the conflicting opinions to be found in Tyson v. Oliver at al. supra and Shelton v. Carpenter, 60 Ala. 201, upon this question.

Section 891 (1177) of the Code has no application to this case in the absence of any proof that Jasper is a place of ten thousand or more inhabitants or in which there is a free postal delivery.—Isbell v. Lewis, supra.

The defendants interposed a demurrer to the evidence in the court below, and it was from a judgment of the lower court upon their demurrer that this appeal is prosecuted. By adopting this mode of defense they admitted the truth of every fact and every reasonable inference deducible from the evidence and cannot here test its competency. This method substituted the trial judge for the jury to decide the weight and sufficiency of the •evidence and admitted its competency for all purposes, leaving the only question to be determined whether the issues upon the evidence were for the plaintiff or defendants.—Buffington v. Cook, 39 Ala. 64; Central Railroad v. Roquemore, 96 Ala. 236. In the case of Foster v. McDonald, 5 Ala. 376, involving the same question as presented here and upon practically the same state of facts, the effect of a demurrer to evidence is learnedly discussed. And it was there said: “It is further objected that there is no proof on the record that the notary put a letter containing the notice, in the postoffi.ee because his certificate to that effect on the protest is not proof .of the fact. The authority of the notary to certify the fact of notice is derived from a statute of this State, which it is argued does not extend to such a case as the present. We decline the examination of this question, because by .demurring to the evidence, the defendant admitted its competency and referred to the court the question of its legal sufficiency to establish the fact it was offered to prove. If, as now contended, it was not competent evidence, then was there no evidence of notice to which the demurrer could apply, and yet it is clear that by the demurrer, the defendant’ demanded the judgment of the court upon the evidence. The impossibility of permitting the defendant now to object to the competency of the evidence will be apparent when we consider that if the objection had been taken in the court below other proof of the fact might have been offered. The objection can no more be taken in this proceding than it could have been after the verdict .of the jury, and indeed, by the demurrer the court is substituted for the jury.”

The argument and contention of defendants’ counsel in this case assails the competency of the evidence, to prove want of proper notice, presentation of the note to the maker for payment, and its refusal after demand. In addition to the recitals in the notarial certificate of presentation and demand for payment and its refusal and a deposit in the postoffice at Jasper notices of- protest addressed to' the defendants, at Jasper, Ala., there is evidence of the fact as testified to by the notary that he notified the defendants by mail of the protest and that giving notice by mail was the custom prevailing there. Under the doctrine quoted above, the soundness of which we do not question, we must affirm the judgment.—Carson v. The Bank, 4 Ala. 148; Young v. Foster, 7 Port. 420.

Affirmed.