Cunyus v. Guenther

• Citation: 11 So. 649,96 Ala. 564
• Parties: CUNYUS v. GUENTHER.
• Decision Date: 02 November 1892
• Court: Supreme Court of Alabama

11 So. 649

96 Ala. 564

CUNYUS v. GUENTHER.

Supreme Court of Alabama

November 2, 1892

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by G. A. Guenther against Charles A. Cunyus on note. Judgment for plaintiff. Defendant appeals. Affirmed.

W M. Spencer, for appellant.

J Q. Cohen, for appellee.

THORINGTON J.

Appellee is the general agent for the northern division of Alabama for the Penn Mutual Life Insurance Company of Philadelphia, the main office of which is located in the city of Philadelphia in the state of Pennsylvania. Appellant through one of appellee's subagents, took out a life policy, and gave his note for the first premium, payable to appellee individually, and the suit is upon this note. Defendant filed six pleas, one of which was intended for the general issue and, after the caption, is as follows: "Comes the defendant, and for answer to the complaint filed against him in the above-entitled cause files the following plea in bar to said suit: First. Defendant says he is not guilty of the matters therein alleged." And the second plea is as follows: " Second. Defendant, for further plea, says that said G. A. Guenther is not a bona fide holder of said note for value, and that said note is without consideration." The third plea alleges misrepresentation and fraud on the part of the agent with whom the defendant dealt, in procuring the policy, by which he was misled. The fourth plea contains the defense of want of consideration, and also that the insurance company never complied with the provisions of article 3, c. 5, of the Code, relating to foreign life insurance companies. The fifth and sixth pleas likewise set up the last-mentioned defense; said sixth plea also containing the averment that plaintiff caused the note to be made payable to himself individually, for the purpose of evading the statute above referred to. The first plea was, on motion of the plaintiff, stricken from the files, and on like motion the words "that said G. A. Guenther is not a bona fide holder of said note for value, and" were stricken from the second plea. The demurrer to the third plea was overruled, and the demurrers to the fourth plea as amended, and also to the fifth plea, were sustained, and the demurrer to the sixth plea was overruled. The case was tried without a jury, and judgment was rendered by the court for the plaintiff, and by the terms of the act creating the court the appeal brings up the whole case for review.

The first plea is not appropriate to a complaint in assumpsit, and was properly stricken from the file by the court. The words hereinabove quoted were stricken from the second plea on the ground that they involved a denial of plaintiff's ownership of the note sued on, and that the plea was not verified by the defendant's oath. Without these words, the plea is that the note sued on is without consideration. No objection is made to that part of the plea and no rule or statute requires a plea a verring either want or failure of consideration to be verified. What is implied, then, in the plea of a want of consideration? Simply that the plaintiff is a holder of the note without value or consideration paid therefor. The insertion in such a plea of the words that the plaintiff "is not a bona fide holder...