Appeal
from circuit court, Montgomery county.
Action
by the Dexter Steam Fire-Engine Company No. 1, of Montgomery
against J. C. Booth and another. There was a judgment for
plaintiff, and defendants appeal. Affirmed.
This
action was brought by the appellee, the Dexter Steam
Fire-Engine Company No. 1, of the city of Montgomery, against
J. C. Booth and A. R. Booth; and counted upon a promissory
note or bond, which was in words and figures as follows
"Montgomery, Ala., January, 1894. On the 1st day of
January, 1897, we promise to pay to the order of Dexter Fire
Co. No. 1, the sum of six hundred and thirty-three and 35/100
dollars. Value received. Negotiable and payable at the First
National Bank, and we do hereby waive all claim for the
exemption of real or personal property," etc. It was
also recited in the note, that the makers waived their right
to exemptions, and that they also agreed to pay a reasonable
attorney's fee for the collection of this note. The note
was signed by J. C. Booth and "Mrs. A. R. Booth."
Mrs. A. R. Booth filed a plea averring that at the time of
the execution of the note she was a married woman and the
wife of J. C. Booth; that she executed said note as surety
for her husband, the said J. C. Booth. The defendant, J. C
Booth, filed nine pleas; the first being the general issue
and the others being special pleas. Demurrers were sustained
to all of the special pleas except the sixth and seventh; but
under the opinion on this appeal, it is deemed unnecessary to
set out in detail these pleas or the demurrers thereto. The
sixth and seventh pleas were as follows: "(6) That the
note sued upon and set forth in the complaint was a special
promise to answer for the debt of another person, to wit, J
B. Trimble & Co.; and that in said note the consideration
thereof is not expressed in writing. (7) That on or about the
15th day of January, 1893, he was elected treasurer of the
plaintiff corporation and qualified as such by giving bond to
faithfully perform the duties of such office; that he did not
receive and was not to receive any compensation for services
rendered as such treasurer; and that, as such treasurer, he
received money belonging to the plaintiff, which moneys he
deposited with J. B. Trimble & Co., a partnership doing a
banking business in the city of Montgomery, Alabama; to his
credit, as such treasurer, for safe-keeping; that said J. B
Trimble & Co. at the time of the deposit, were engaged in the
banking business and were considered at said time by the
defendant and by prudent men as solvent, and their bank was
considered a safe place for the deposit of moneys and were so
considered by the defendant and prudent men continuously up
to the time of their failure, as hereinafter set forth; that
after the deposit, as aforesaid, the said J. B. Trimble & Co.
failed in business, making a general assignment leaving very
small assets for their creditors; that moneys which defendant
received, as such treasurer, were to his credit, as such
treasurer in said bank at the time of the failure; and that
the defendant has not received anything whatever from the
said J. B. Trimble & Co. or their assignee; that subsequent
to said failure, this defendant executed the note sued upon
in this cause, the only consideration therefor being the loss
of the money in the bank of said J. B. Trimble & Co. as
stated above; and he avers that said note sued upon was made
upon the condition set forth above and no other; and that it
was made without any good or valuable consideration."
To the
sixth plea the plaintiff demurred upon the following grounds:
"(1) Said plea fails to aver any facts showing that the
debt sued on was the debt of J. B. Trimble & Co. (2) Said
plea fails to aver any facts showing that the note sued on
was a collateral, and not an original, undertaking. (3) Said
plea is an attempt to plead the statute of frauds without
setting out the averments necessary to sustain such plea. (4)
The complaint shows that the note sued on was an original
undertaking, and not a contract within the statute of
frauds." "(8) Said plea fails to aver that the day
of payment of the alleged liability of Trimble & Co. was not
postponed by the execution and acceptance of the note sued
on."
To the
seventh plea the plaintiff demurred upon the following, among
other grounds: "(1) Said plea shows on its face that
there was a valuable consideration for the note sued on in
this, that it shows by the execution and acceptance of said
note, the defendant became the equitable assignee of the
claim against J. B. Trimble & Co. for the amounts it alleges
were deposited with them by the defendant. (2) Said plea
fails to aver that the money for which the note sued on is
alleged to have been executed was deposited in the bank of J.
B. Trimble & Co. with the knowledge and consent of the
plaintiff. (3) Said plea shows on its face that the note sued
on was executed and accepted in compromise and settlement of
a disputed claim. (4) Said plea shows that by the execution
and acceptance of the note sued on there was a suspension or
forbearance of plaintiff's right of action against the
defendant or the said J. B. Trimble & Co. (5) Said plea shows
by the execution and acceptance of the note sued on the
original debt for which said note was given was extinguished
or the time of payment postponed." These demurrers were
overruled. Thereupon the defendant filed the following
replications to the seventh plea: "(1) Comes the
plaintiff and for reply to the seventh plea in this cause
heretofore filed by the defendant, J. C. Booth, says that
when the said defendant was elected treasurer of plaintiff he
entered into a bond with ___ and ___ as sureties for the
faithful performance of his duties which said bond was valid
and of full force and effect at the time of the alleged
failure of J. B. Trimble & Co., that plaintiff demanded of
said defendant and the said sureties on his said bond the
money of plaintiff which had been in his possession as its
treasurer, and said defendant agreed with plaintiff in
consideration of the surrender and cancellation of said bond
and the release of his said sureties from liability thereon
to execute his notes to plaintiff, including the note here
sued on, and plaintiff surrendered said bond and released
said sureties from further claim and demand of plaintiff
thereunder, and defendant then and there executed said notes
including the note sued on, and plaintiff says that by reason
of the surrender of said bond and the release of said
sureties there was a valid and valuable consideration for the
execution of said note of the defendant. (2) Comes the
plaintiff and further replying to said seventh plea says that
after the alleged failure of J. B. Trimble & Co. and the
alleged loss of the money of plaintiff thereby, and after the
execution and delivery of the note sued on, the defendant J.
C. Booth collected from said firm or the assignee thereof,
the sum of, to wit, $100 as his own money, and made use
thereof, said sum being the amount of a dividend declared by
said firm or its assignees on the money deposited by said
defendant as treasurer. (3) Comes the plaintiff and for
further reply to said seventh plea says that at the time of
the execution and delivery of the note sued on, it was
understood and agreed that said note was given in full
settlement and satisfaction of all claims or demands of
plaintiff against the said J. C. Booth, J. B. Trimble & Co.
and any and all persons whatsoever for or on account of the
money of plaintiff which had been in the hands of said Booth
as treasurer, and which is alleged to have been deposited in
the bank of the said J. B. Trimble & Co., and plaintiff says
that in pursuance of said agreement, plaintiff accepted said
note in full satisfaction of all said demands and abandoned
and surrendered all said claims and demands, and plaintiff
avers that therefore there was a valid consideration for said
note. (4) For further answer to said seventh plea, plaintiff
says that the note sued on was given and accepted in
settlement and compromise of the claim of the plaintiff
against the defendant and J. B. Trimble & Co."
To the
first, third and fourth replications, the defendant demurred
upon the following, among other grounds: "(1) Said
replication shows that the only consideration for the note
sued upon was the surrender and cancellation of the bond
referred to therein, upon which neither defendant nor his
sureties were liable. (2) Said replication shows that the...
