Calkins v. Vaughan , 217 Ala. 56 ( 1927 )

The pleadings in this case are unnecessarily voluminous, and we shall not undertake to deal with them in a detailed and technical way.

The action is a simple one to recover on a promissory note; the theory of defendant's liability being, as stated in the several counts, that he executed the note as a maker, or as an ordinary indorser, or as an accommodated (not accommodation) indorser.

The special defenses set up are (1) that presentment for payment was not made at all, or not properly made, and (2) that notice of nonpayment or dishonor by the maker, Stanley, was not seasonably given to defendant, who was an indorser merely.

The replications offered in avoidance of these defenses are (1) that, after those alleged omissions of presentment and of notice of dishonor, defendant promised, nevertheless, to pay the note; (2) defendant was an accommodated indorser, and, being primarily liable, as between himself and the maker, and having no right to expect payment by the latter, he was not injured by nonpresentment to the maker, nor by want of notice of dishonor, and was not discharged from liability by either of those omissions; (3) that the place of payment, the Merchants' Bank, had long before ceased to exist as such, thereby excusing presentment there; that the maker, Stanley, had long before moved to Florida, thereby excusing the alternative duty of presentment to him in person; and (4) that plaintiff, in fact, gave defendant notice of the dishonor of the note, by letter mailed to him on the day of maturity. The pleas are filed indiscriminately "to the complaint," and the replications are filed to the pleas en masse.

Replication numbered 2, epitomized in (1) above, was bad in not averring that defendant had knowledge of the facts of nonpresentment and nonpayment when he promised to pay. Sherrod v. Rhodes, 5 Ala. 683, 689. The demurrer aptly pointed out this defect, and should have been sustained. This error, however, was not material to the result, and need not be further noticed.

We gather from appellant's brief, and from the evidence in the record, that the question of controlling importance in determining the propriety, vel non, of the affirmative charge for plaintiff, was whether defendant was anaccommodated indorser, and the maker an accommodation maker merely, or whether defendant was an accommodation indorser for the benefit of the maker.

If the former, he was himself under obligation to take up the note, and after so doing would have had no remedy against the nominal maker, Stanley. "Consequently, being without legal possibility of injury, he is not entitled to formal demand or notice of dishonor." 8 Corp. Jur. 285, § 447. The Negotiable Instruments Law itself dispenses with presentment for payment (Code, § 9106), and with notice of dishonor (Code, § 9135), as to an indorser or other party for whose accommodation the note was given.

But the evidence, which we have considered very carefully, leads us to the conclusion, as a matter of law, that defendant was an accommodation indorser for the benefit of the maker, Stanley, who was primarily obligated to pay the note, and upon whom defendant was entitled to recourse, if he himself was compelled to pay it. Had defendant and Stanley merely exchanged indorsements of their respective notes, given for a consideration beneficial to both of them, and both notes remaining unpaid, our conclusion might, perhaps, be different. But Stanley did not indorse defendant's note, and defendant himself paid it; and the consideration for each note, severally, was the retransfer by the payee to each maker, severally, of the particular corporation stock purchased from him. These facts forbid the conclusion that Stanley made the note for the accommodation of defendant.

It results that defendant had all the rights of any indorser, as to the presentment of the note for payment, and as to seasonable notice of its dishonor. Code, §§ 9096, 9114.

As to notice of dishonor, plaintiff's duly authorized attorney, Mr. Olson, testified that he mailed a properly stamped and addressed letter from Chicago, on April 27, 1923 (the date the note was payable), to defendant, at Montgomery (his residence), advising him of Stanley's failure to pay the note, and demanding payment by defendant. On this testimony, which was not disputed, "the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails." Code, § 9128. Clearly, therefore, plaintiff was entitled to an affirmative instruction on that issue.

As to the duty of the holder of this note to present it for payment at the time and place specified, the following points are settled: (1) The fact that the maker has no funds at the bank designated as the place of payment excuses presentment there during banking hours, but presentment is nevertheless required to be made at some time before the bank is closed. Code, § 9101. (2) The fact that the maker is insolvent at the time for payment does not excuse presentment at the time and place specified. Stocking v. Conway, 1 Port. (Ala.) 260; Lee Bank v. Spencer, 6 Metc. (Mass.) 308, 39 Am. Dec. 734; 8 Corp. Jur. 689, § 963, and cases cited in note 57. (3) Where a place for payment is specified, presentment must be made there (Code, § 9099), if it can be done by the exercise of reasonable diligence (Code, § 9108). (4) If the place specified has ceased to exist, presentment there will be excused; and in that case personal presentment to the maker at another place is not required. Roberts v. Mason, 1 Ala. 373.

The decisive question here is whether the specified place of payment — the Merchants' Bank of Montgomery — had ceased to exist, in such sense as to excuse presentment of the note for payment. That question, it seems to us, permits of only one answer. The Merchants' Bank had gone out of business, and ceased to function as a bank. In a business sense — in the sense in which it was designated in the note, and known to the public — it had utterly ceased to exist. It was not continued as a place of business, or as a place where negotiable instruments could be presented, and handled, and paid, by the fact that a liquidating agent, operating under the authority of the state banking department, maintained an office somewhere in Montgomery for the purpose solely of winding up its affairs.

We are constrained to the conclusion that the Merchants' Bank, as a place for presentment and payment, had ceased to exist, and that plaintiff was excused from making presentment there, and was not required to make it elsewhere.

Our final conclusion is that the general affirmative charge was properly given for plaintiff, and that the trial court erroneously granted a new trial to defendant.

The judgment in that behalf will be reversed and set aside, and the judgment for plaintiff will stand as originally rendered.

Reversed and rendered.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.

On Rehearing.