Bank of Luverne v. Sharpe

• Decision Date: 14 November 1907
• Citation: 44 So. 871,152 Ala. 589
• Parties: BANK OF LUVERNE v. SHARPE.
• Court: Alabama Supreme Court

44 So. 871

152 Ala. 589

BANK OF LUVERNE v. SHARPE.

Supreme Court of Alabama

November 14, 1907

Appeal from Circuit Court, Crenshaw County; J. C. Richardson, Judge.

Action by the Bank of Luverne against C. K. Sharpe. From a judgment sustaining demurrers to the complaint, plaintiff appeals. Reversed and remanded.

Action against an indorser of several promissory notes, the principal to which is not sued. The case made by the various counts of the complaint is that certain teachers executed certain notes to H. C. Tharpe, each in the sum of $9.75, and which notes are in words and figures as follows: "$9.75. Luverne, Alabama, 1/4/1904. On or before March 1, 1904, I promise to pay to the order of H. C. Tharpe nine dollars and seventy-five cents, for value received, and I do hereby authorize the county superintendent of Crenshaw county to deduct same from my salary as teacher of district No. ______ for the school year ending June 30, 1904." It is averred that these notes were indorsed by C. K. Sharpe, the county superintendent of education, and that the plaintiff purchased them from the holder, Tharpe, for valuable consideration. It is then alleged that the reason the maker is not sued within 30 days after maturity of said note was because the suit could or would have been defeated on a plea of failure of consideration, in this: that said note was given for the purchase price of a certain book to be delivered within a reasonable time thereafter to the maker of each of the said notes by said H. C. Tharpe, and which book plaintiff avers was never delivered. There are 12 counts in the complaint and each count declares in identical words with the other except as to the name of the maker of the note. Demurrers were interposed to each count of the complaint as follows "(1) The allegation of each count of said complaint shows that the plaintiff has no cause of action against this defendant. (2) An accommodation indorser of a nonnegotiable note is not liable when it appears from the complaint and each count thereof that the maker of the note is not liable thereon by reason of the failure of consideration as to the maker of the note. (3) It appears from said complaint as amended and each count thereof that there was before the bringing of the suit a complete failure of consideration so far as the makers thereof are concerned, and also so far as this defendant is concerned; and it further appears that the suit is against the defendant as indorser of nonnegotiable notes." These demurrers were sustained, and the plaintiff excepted thereto, and, declining to plead over takes this appeal.

M. W. Rushton, for appellant.

Pearson & Richardson, for appellee.

ANDERSON J.

While there is considerable conflict and confusion among the cases as well as the text-books, as to the liability of the indorser of a nonnegotiable note, we are disposed to follow the line of decisions holding that the...