Breitling v. Marx , 123 Ala. 222 ( 1898 )

McCLELLAN, C. J.

A written promise under seal to pay money is not' a promissory note, nor can it be declared on as such; but a writing is not under seal unless the purpose to seal it is expressed or indicated in its body: The mere suffixing a scroll containing the word “Seal” or the letters “L. S.” to the name of the subscriber does not make it a writing under seal.—Carter & Carter v. Penn, 4 Ala. 140; Blackwell v. Hamilton, 47 Ala. 470. The obligations upon which this suit is brought are properly declared on as promissory notes: They as described in the complaint and in fact are commercial paper. Plaintiff being an indorsee of said notes, and alleging in the complaint that he purchased them for value before maturity and without notice of any defenses to them, pleas 4, 5 and 6, which set up want or failure of consideration for the notes, but failed to deny the averments of the complaint that plaintiff was a purchaser for value before maturity and without notice, presented no defense to the action. Plaintiff’s demurrer to them was, however, overruled. He thereupon took issue upon them. This he should not have done. His remedy was to decline to plead' over, suffer judgment and appeal. Having taken issue upon them, however, he- thereby made them material and vital. On the trial not only did the defendant prove want or failure of consideration, but the plaintiff admitted, that the notes were without any consideration. On this state of pleading, proof and admission, the defendant was entitled to.verdict and judgment, and the court erred in giving the affirmative charge for the plaintiff.

Reversed and remanded.