Alabama Nat. Bank v. Hunt

• Decision Date: 18 April 1900
• Citation: 125 Ala. 512,28 So. 488
• Parties: ALABAMA NAT. BANK v. HUNT ET AL.
• Court: Alabama Supreme Court

28 So. 488

125 Ala. 512

ALABAMA NAT. BANK v. HUNT ET AL.

Supreme Court of Alabama

April 18, 1900

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Action by the Alabama National Bank against George C. Hunt, John B Tally, and William Richardson. Judgment for plaintiff against defendants Hunt and Tally, and judgment for defendant Richardson. From the latter judgment, plaintiff appeals. Affirmed.

This suit was instituted on October 13, 1896, by the Alabama National Bank against George C. Hunt, John B. Tally, and William Richardson; and counted upon a promissory note for $500, which was signed by the defendant and dated January 20 1896, and payable on May 1, 1896, to the order of Joseph F Johnston, which note was alleged in the complaint to belong to the plaintiff. This note was made payable at the Alabama National Bank, at Birmingham, Ala.

The defendant William Richardson pleaded the general issue and 10 special pleas, in which he set up that he was not a co-maker on the note but a mere surety thereon; that the defendant Hunt was the principal debtor, and that on May 30, 1896, the defendant Richardson, by notice in writing, required the bank to bring suit against said Hunt at the next term of the court, and that by reason of the failure of the bank to bring suit against Hunt at the August term, 1896, of the circuit court of Madison county, Richardson was discharged as surety under the provisions of section 3884 of the Code of 1896. There were demurrers interposed to these special pleas. The rulings upon these demurrers, as set forth in the judgment entry, are copied in the opinion. Thereupon the plaintiff filed several replications, in which it set up that the note sued on was commercial paper, and that it acquired said note in due course of business before maturity in a bona fide transaction for a valuable consideration, and without notice that Richardson was or claimed to be a surety on said note. Demurrers were interposed by the defendant Richardson to these replications. The ruling upon the demurrers to the replications, as set forth in the judgment entry, was as follows: "The defendant offers demurrers numbered 1, 2, 3, 4, 5, and 6 to the plaintiff's replications numbered 2, 3, 4, and 5, which demurrers to said replications are by the court sustained." The judgment entry then recites: "And thereupon issue being joined on the 1st, 2d, 5th, 7th, 8th, 9th and 10th pleas of defendant, and a struck jury being demanded and granted, thereupon comes a jury," etc.

The plaintiff offered in evidence the note sued on. This note was for $500, dated January 20, 1896, and recited: "On the 1st day of May, 1896, we promise to pay to the order of Jos. F. Johnston the sum of five hundred dollars, at the Alabama National Bank, Birmingham, Alabama." It contained a waiver of the right to claim exemptions, a promise to pay reasonable attorney's fees for collection, and a waiver of demand, purchase, and dishonor. It was signed by George C. Hunt, John B. Tally, and William Richardson. It was indorsed "Jos. F. Johnston."

William Richardson, the defendant, testified, against the objection of the plaintiff, that he was only a surety on the said note; that there was no consideration moving to him for his execution of the note, and that he signed it as an accommodation to the said George C. Hunt, who was the principal debtor. The other evidence for the defendant showed that Hunt was the principal maker of the note, and that the defendants Richardson and Tally signed the same as his sureties. The letter from the defendant William Richardson to the Alabama National Bank, dated May 30, 1896, requiring the institution of suit on said note, is copied in the opinion.

It was shown by the plaintiff that it acquired the note in due course of business before its maturity.

Joseph F. Johnston, as a witness for the plaintiff, testified that the bank had no notice or knowledge that Richardson was surety on the note; that he, Johnston, never told any of its officers that he was a surety; that on April 30, 1896, he sold the note to the plaintiff for $499, and indorsed it. There was other evidence introduced by the plaintiff tending to show that it did not know that Richardson was surety on the note, and that it had acquired the note in due course of business for a valuable consideration before maturity.

Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the following, among other written charges: (1) "If the jury believe the evidence they must find a verdict for the plaintiff." (2) "Unless the jury are satisfied from the evidence that Judge Richardson required the bank, by notice in writing, to bring suit on said note, to the August term, 1896, the plaintiff is entitled to recover." (3) "There is no evidence in this case that the bank knew when the note was discounted by it, or when it received Richardson's letter of May 30th, that said note signed by Hunt, Richardson, and Tally was given for the identical $500 which the bank had formerly paid to Hunt on Johnston's check." (13) "Section 3884 of the Code has no influence upon this case under the evidence, and unless you believe from the evidence the defendant has suffered some damage, by the failure of the plaintiff to bring suit at the August term, 1896, the plaintiff is entitled to a verdict."

The court refused to give each of these charges requested by the plaintiff, and to the refusal to give each of them the plaintiff separately excepted. The plaintiff also separately excepted to the court's giving at the request of the defendant Richardson, the following written charges: (1) "If the jury believe from the evidence that the bank had notice that Richardson was a surety, and, after being notified to bring suit, failed or refused to bring suit at the August term of the circuit court of Madison county, 1896, then Richardson is not liable, and your verdict must be for the defendant Richardson." (2) "If the jury find from the evidence that the defendant Richardson was merely a surety on the note sued on, and that when the plaintiff bank received the written notice from the defendant Richardson, dated May 30, 1896, it had notice that defendant Richardson was merely such surety, and that plaintiff did not bring suit on such note to the first term to which such suit could have been brought, then the jury should find in favor of the defendant Richardson." (3) "If the jury believe from the evidence that the bank had notice that Richardson was a surety at the time the note was executed, then your verdict must be for the defendant Richardson." (4) "It is for the jury ascertain from the evidence whether the plaintiff was informed when the notice from defendant Richardson dated May 30, 1896, was received that the defendant Richardson was merely a surety on the note sued on."

There were verdict and judgment in favor of the plaintiff against the defendants George C. Hunt and J. B. Tally, and there were verdict and judgment in favor of the defendant Richardson. The plaintiff appeals, and assigns as error the several rulings of the court to which exceptions were reserved.

Humes, Sheffey & Speake and John W. Tomlinson, for appellant.

R. W. Walker and William Richardson, for appellees.

HARALSON J.

In this cause one of the defendants filed a number of special pleas to which demurrers were interposed. Upon these demurrers what purports to be the judgment entry contains the following recital: "Thereupon plaintiff's demurrers, numbered 1, 2, 3, 4, 5, 6, 7, 8 and 9 to the 3d and 4th pleas are overruled and disallowed. All demurrers to 5th, 7th, 8th, 9th and 10th pleas are overruled and disallowed."

It has been repeatedly held by this court that unless a party secures a...