Atwood v. Benson
| Decision Date | 30 June 1926 |
| Docket Number | 1 Div. 416 |
| Citation | 109 So. 361,215 Ala. 72 |
| Parties | ATWOOD v. BENSON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Mobile County; C.A. Grayson, Judge.
Action by R.L. Atwood against J.H. Benson. From a judgment of nonsuit on demurrer, plaintiff appeals. Reversed and remanded. Transferred from Court of Appeals under Code 1923 § 7326.
Harry T. Smith & Caffey, of Mobile, for appellant.
Inge & Bates, of Mobile, for appellee.
The suit is upon a check, payment of which was refused by the bank for want of funds. The action is by the payee against the maker or drawer.
The sole question presented for decision is whether the complaint is subject to demurrer for failure to aver the check, or debt evidenced thereby, is still unpaid.
Code 1923, § 9203.
The maker of negotiable paper engages that he will pay it according to its terms. Code, § 9086.
The drawer of a check engages that on presentment to the bank it will be paid, and, if not, that he will pay it (Code, § 9087), subject to any loss caused by unreasonable delay in presenting to the bank for payment. Code, § 9204.
It is suggested that the Code forms intend to reduce pleading to the simplest terms; that no averment of such forms should be deemed surplusage. In that connection forms of complaint Nos 2, 3, and 4 are cited as containing the averment that the demand is still unpaid. These forms are for suits on a bill of exchange by "indorsee against acceptor," "indorsee against drawer," and "indorsee against indorser." No form is given for suit by drawee against drawer, the case before us. Form 1, suit on note by payee against maker, does not negative payment. The same is true in suit between the immediate parties on bond without condition. Form 5. But in a suit by an assignee against an assignor of a note or bond the form does negative payment. Form 6.
This is suggestive that, where there are other parties to the instrument, primarily or secondarily liable, the Code form of complaint negatives payment, the equivalent of an averment that the instrument evidences a subsisting demand at the time of suit brought; but in suits between maker and payee, or obligor and obligee, the original parties to the instrument no such averment appears.
Code forms, or others substantially equivalent, are good. Section 9531. It is not necessary to here decide whether in all cases a complaint is defective which uses a Code form, but omits some clause thereof. Ordinarily, no averment is found in these forms not essential to the cause of action, and, if used, should be followed. As stated, there is no form prescribed for suit by the payee against the maker or drawer of a check. In some respects the action is more analogous to a suit on a note or bond by the payee against the maker than to an action by an indorsee of a bill of exchange. The general rule is everywhere recognized that payment is an affirmative defense. It must be...
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Jackson v. Chemical Nat. Bank
...Bank, 6 Ala. 12, 41 Am.Dec. 33, the place of payment was not specifically stated as in the instant bills of exchange. In Atwood v. Benson (Ala.Sup.) 109 So. 361, speaking the effect of the statute (Code of 1923, § 9086), the observation is made that the maker of negotiable paper engages to ......
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Deal v. Atlantic Coast Line R. Co.
...of demurrer interposed to it, unless it be that notice of non-payment was not given the drawer, and this we will presently consider. Atwood v. Benson, supra; et al. v. Parker, 221 Ala. 63, 127 So. 813; Martin v. Foster, 83 Ala. 213, 3 So. 422; Bolling v. McKenzie, 89 Ala. 470, 7 So. 658. Wa......
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Adams v. Baker, 5 Div. 697
...was, was not properly before the court under the answer. Payment is an affirmative defense and must be specially pleaded. Atwood v. Benson, 215 Ala. 72, 109 So. 361; 15 Ala. Dig., Payment, k59. The answer must put in issue all the facts on which the defendant relies in bar of the relief sou......
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