Whitaker v. Hofmayer Dry Goods Co. , 211 Ala. 160 ( 1924 )

If there was error in sustaining plaintiff's (appellee's) demurrer to defendants' plea numbered 2, it was harmless for the reason that defendants had full advantage of the same defense under other special pleas.

Defendants were sued as indorsers of two promissory notes executed by the Metcalf Company, a corporation, and payable to plaintiff. The Metcalf Company was indebted to plaintiff in an amount long past due, and the notes in suit were given to close the account and extend the time of payment. These appellants defended on the ground that, after the transaction, in the course of which the notes were given, had been consummated and the notes delivered and accepted, they indorsed the same as sureties without further consideration moving to them or their principal (Richardson v. Fields, 124 Ala. 535, 26 So. 981), and offered testimony tending to sustain their contention. But the testimony as to this was in dispute; that adduced by plaintiff going to show that it had refused to accept the notes, thereby extending the time of payment, unless and until these defendants indorsed the same. As relevant to the issue thus presented, plaintiff was allowed to show on the cross-examination of defendants, and over their objection, that, at the time of the alleged indorsements, they were officers and stockholders of the Metcalf Company. This evidence was relevant on more than one ground: It tended to show that defendants, as stockholders at least, that is, as ultimate owners in part of the debtor corporation — though under no legal duty to use their individual pecuniary means to assist it in its difficulties — had an interest to be served by the proposed indulgence and so that the consideration for these notes moved in part to them, and for like reason it also shed light on the credit due to them as witnesses.

The notes declared on and offered in evidence by plaintiff purported to have been signed by the Metcalf Company and to have been indorsed by defendants were properly admitted in evidence without preliminary proof of their execution or indorsement, in the absence of a plea denying such execution or indorsement. Code, § 5332; Espalla v. Wilson, 86 Ala. 490,5 So. 867.

Charges refused to defendants are assigned for error en masse, and the assertion of the brief is general that they state correct principles of law, applicable to the case at bar, and their refusal was error. In these circumstances this court is under no duty to cast about for error. However, the charges have been read without disclosing error.

The motion for a new trial, overruled in the trial court, presents only questions which have been stated and decided in what has been said heretofore. No further discussion is necessary.

Affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.