Anniston Loan & Trust Co. v. Stickney

• Decision Date: 09 January 1896
• Citation: 19 So. 63,108 Ala. 146
• Parties: ANNISTON LOAN & TRUST CO. v. STICKNEY. [1]
• Court: Alabama Supreme Court

19 So. 63

108 Ala. 146

ANNISTON LOAN & TRUST CO. v. STICKNEY. ^[1]

Supreme Court of Alabama

January 9, 1896

Appeal from city court of Anniston; James W. Lapsley, Judge.

Action by the Anniston Loan & Trust Company against R. H. Stickney Jr. Judgment for defendant. Plaintiff appeals. Reversed.

This action was brought by the appellant, the Anniston Loan &amp Trust Company, against the appellee, Richard H. Stickney Jr., and counted upon a promissory note upon which the defendant was an indorser. The note sued upon is set out at length in the opinion. It was averred in the bill that said note, before maturity, and before the commencement of this suit, was duly and regularly transferred and indorsed by the defendant and Benjamin Micou to the plaintiff, for a valuable consideration. The pleadings in the case are quite voluminous, and since the result of such pleading is to present the issue as to whether the note sued on possesses the requisites of commercial paper under the statutes of this state, and therefore governed by the law merchant, it is unnecessary to set out these pleadings in detail. The cause was tried upon an agreed statement of facts, in which it was stated that the plaintiff, the Anniston Loan & Trust Company was a corporation, duly organized under the laws of Alabama to do a general banking business, and that it carried on a general banking business in the city of Anniston, and that its business and its place of business were generally known in that community, and that the note here sued on was, before maturity and for a valuable consideration, indorsed and transferred to the plaintiff by the defendant and Benjamin Micou. At the maturity of said note, it was not formally protested, but the defendant, R. H. Stickney, Jr., agreed in writing, and indorsed on the back of said note, to waive demand, notice, and protest. The cause was tried by the court without the intervention of a jury, and, upon the hearing of all the evidence, the court rendered judgment for the defendant. The plaintiff appeals, and assigns as error the rulings of the court upon the pleadings and the rendition of the judgment in favor of the defendant.

Knox, Bowie & Pelham, for appellant.

Matthews & Whiteside, for appellee.

BRICKELL C.J.

The suit was founded on the defendant's indorsement of a promissory note, which is in these words and figures: "$1,100.00. Anniston, Ala., February 11th, 1893. Six months after date, I promise to pay, to the order of Benjamin Micou, eleven hundred dollars. Value received. Negotiable and payable at Anniston Loan and Trust Company, of Anniston, Ala. And in case this note is not paid at maturity, and suit is brought for its collection, we agree to pay ten per cent. attorney's fees; and each of us, whether maker or indorser, hereby waive and renounce for myself and family any and all homestead or exemption rights we may have guarantied to us by the constitution or statute laws of the state of Alabama or any of these United States. V. H. Marshall. Due Aug. 11-14. Certificate No. 42, for 31 shares of the capital stock of the Anniston Transfer, attached as collateral." Indorsed on back: "It is hereby agreed that this indebtedness is to be extended for six months from the maturity of this note, if so desired by the makers and indorsers, upon their giving a new note similar to this. John H. Noble, Sec. Benj. Micou. R. H. Stickney, Jr." "Demand, notice, and protest waived. Aug. 14, '93. Benj. Micou. R. H. Stickney, Jr." The trial was had before the judge of the city court, without the intervention of a jury. The pleadings are voluminous, but the case involves only one question of merit and importance; and, as that was directly presented and decided by the city court, we shall consider and determine it, without reference to any matter of mere pleading. That question is whether the instrument indorsed has the essential qualities and properties of a promissory note governed by the commercial law.

Though according to the law merchant, a promissory note is not confined to any set form of words, whatever are the words employed, they must import an unconditional promise to pay to another's order or to bearer a certain sum of money at a time therein specified. Story, Prom. Notes, § 1. To these essential requisites of a promissory note, certainty in obligation, certainty in the money to be paid, and certainty in the time of payment, the statute adds certainty of the place of payment. To be negotiable and governed by the commercial law, the statute requires that the note be payable "at a bank, or private banking house, or a certain place of payment therein designated." Code, § 1756. At the time of the making and indorsement of the instrument, the Anniston Loan & Trust Company was a corporation engaged in the business of banking, having a known place of business in the city of Anniston. This fact was shown affirmatively by extrinsic evidence, rendering certain the place at which the instrument was payable, whether we read it as payable at a bank "or at a certain place of payment therein designated." When a promissory note is made, having a place of payment expressed, the place may be distinguished, individualized, and rendered certain by extrinsic evidence, for the same reason that when the description in an instrument of writing of persons or things or places is vague and general, or is applicable to several persons or several species of things or several places, extrinsic evidence may be received to give application to the description. 1 Greenl. Ev. § 288; Rudolph v. Brewer, 96 Ala. 189, 11 So. 314. The note and the agreement thereon indorsed must be read and construed as if they were embodied in and formed a single writing. So reading and construing them, the contention is that the note was not payable in money, but payable in another similar note, or, in any event, that the time of payment was uncertain, and of consequence the note is wanting in the essential qualities of an obligation to pay money, and of certainty in the time of payment. The error of the contention in the first respect seems obvious. It is not payment-satisfaction of the obligation resting upon the makers and indorsers-which the indorsement contemplates, or which, upon any just construction, can be deduced from its words. All that was contemplated was that the maker and indorser should have the option or privilege of extending the debt, not of paying it, by giving a new note similar to the existing note. The giving of a promissory note or bill of exchange, without more, is not satisfaction of a pre-existing indebtedness. The only effect of taking such note or bill is, ordinarily, to suspend the creditor's remedy upon the original indebtedness, until the maturity of such note or bill. 1 Brick. Dig. p. 287,§§ 501, 502. In Keel v. Larkin, 72 Ala. 493, it was said: "The giving of the debtor's own note or bill, even though negotiable, does not, according to what is deemed the better doctrine as settled in this state, operate to discharge such debt, unless accepted in absolute payment." In Lee v. Green, 83 Ala. 491, 3 So. 785, it was also said: "It is the settled doctrine in this state that when the debtor gives his own security, of no higher nature, for a pre-existing debt, it is considered, in the absence of an agreement, express or implied, as collateral or additional security, or a conditional payment, which does not operate an...