Briel v. Exchange Nat. Bank

• Citation: 61 So. 277,180 Ala. 576
• Parties: BRIEL v. EXCHANGE NAT. BANK.
• Decision Date: 06 February 1913
• Court: Supreme Court of Alabama

61 So. 277

180 Ala. 576

BRIEL v. EXCHANGE NAT. BANK.

Supreme Court of Alabama

February 6, 1913

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by the Exchange National Bank against Fred C. Briel. From a judgment for plaintiff, defendant appeals. Affirmed.

Steiner Crum & Weil, of Montgomery, for appellant.

Ball &amp Samford, of Montgomery, for appellee.

SOMERVILLE J.

On a previous appeal it was held that the note here sued on was prima facie the personal obligation of the defendant, as well as of the Briel Shoe Company, but that that intendment and effect might be defeated by evidence dehors the note showing a contrary intention by the parties. Briel v. Exchange National Bank, 172 Ala. 475, 55 So. 808.

The names of the intending maker or makers were not in the body of the note, and the three signatures were written one under the other: Briel Shoe Co.; Fred C. Briel, Prest.; J.H Taylor, Mgr.

The trial in the lower court was by the judge, without a jury, and on the evidence adduced as to the meaning and effect of defendant's signature the conclusion was reached that he was thereby personally bound for the payment of the note, and there was judgment for plaintiff accordingly.

The decisive question was purely one of fact, and on this appeal the judgment of the trial court comes to us with the conclusive force and effect of a verdict rendered by a jury, and the only inquiry we may here make is whether there was sufficient evidence to support the judgment. Montgomery Lodge, etc., v. Massie, 159 Ala. 437, 49 So. 231; Dodge v. Irvington Land Co., 158 Ala. 91, 48 So. 383, 22 L.R.A. (N.S.) 1100.

"In such cases the rule is not to reverse the finding, unless it is so manifestly against the evidence that a judge at nisi prius would set aside the verdict of a jury rendered on the same testimony." Nooe v. Garner, 70 Ala. 443. And that should never be done, "unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust." Cobb v. Malone, 92 Ala. 630, 9 So. 738. As said in that case, the trial judge "has heard and seen the witnesses testify, observed their tone and demeanor, and noticed their candor or convenient failure of memory to avoid impeachment, or for other improper purpose. The appellate court, possessing none of those aids and advantages, and receiving the evidence on paper only, is less qualified to determine what evidence is worthy of belief, or what weight should be given to that which has been rejected by the jury, and may give undue weight to the testimony of some of the witnesses." 92 Ala. 634, 9 So. 739.

In this case the prima facie intendment of personal...