Brockway v. Gadsden Mineral Land Co.

• Decision Date: 12 April 1894
• Citation: 102 Ala. 620,15 So. 431
• Parties: BROCKWAY v. GADSDEN MINERAL LAND CO.
• Court: Alabama Supreme Court

15 So. 431

102 Ala. 620

BROCKWAY v. GADSDEN MINERAL LAND CO.

Supreme Court of Alabama

April 12, 1894

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by the Gadsden Mineral Land Company against W. G. Brockway. From a judgment for defendant, plaintiff appeals. Reversed.

On the trial of the cause, as is shown by the bill of exceptions the plaintiff introduced in evidence the note sued on, a copy of which is found in the opinion. The plaintiff introduced in evidence a copy of the minute entry of a meeting of the stockholders of the Gadsden Mineral Land Company, at which meeting there was a resolution passed instructing the president, "to call the money due on notes of members who had sold their stock." The defendant objected to the introduction of this minute entry of the proceedings of the stockholders, on the ground that it was illegal and irrelevant. The court overruled the objection, and the defendant excepted. The plaintiff also introduced in evidence a copy of the minute entry on the books of said company of a meeting of the board of directors of the Gadsden Mineral Land Company, held at Chattanooga, Tenn., April 5, 1889. At this meeting "the president was instructed to call money due on notes from parties sold out." The defendant objected to the introduction of the copy of these proceedings in evidence, on the grounds: First, that it was illegal and irrelevant; second, the directors could not hold a meeting outside of the state; third, it was not shown that the prerequisites for a valid meeting outside of the state were observed; and fourth, because the meeting was illegal. The plaintiffs also introduced in evidence a copy of the minute entry on the books of said company of a meeting of the directors of the Gadsden Mineral Land Company, held November 9, 1887, at which meeting the president was instructed to call for the payment of $50 from each of the stockholders' notes. The defendant objected to the introduction of these proceedings of the stockholders at said meeting in evidence, and duly excepted to the court's overruling his objection. The cause was tried by the court without the intervention of a jury.

Dortch & Martin, for appellant.

Jas. L Tanner, for appellee.

HARALSON J.

The record in this case is very imperfectly made up. No errors are assigned on the rulings on the pleadings, and the course the trial took indicates that it was on the general issue and the want of consideration. It was by and before the presiding judge without a jury. It was admitted that the plaintiff company was incorporated, and no objection was made to the introduction of the note sued on. The note reads as follows: "Gadsden, Ala., June 6, 1887. On demand I promise to pay to the order of the Gadsden Mineral Land Company, subject to a call by the board of directors, five hundred and fifty dollars, at their office of Gadsden, Ala value received," which note was signed by the defendant and on which there was an indorsement of the payment of $50, as of January 18, 1888. The complaint, after describing the note properly, contains the averment, that "after a call made by the board of directors of plaintiff's corporation, plaintiff then demanded at plaintiff's office in Gadsden, Ala., payment of said note, which was refused, and which amount the defendant still refuses to pay." The rule generally is, that a note payable on demand is due forthwith, and no demand is necessary before bringing suit on it against the maker. Owen v. Henderson, 7 Ala. 641; Bank v. McDonnell, 83 Ala. 595, 4 So. 346; Massie v. Byrd, 87 Ala. 681, 6 So. 145; 5 Am. & Eng. Enc. Law, 528z. And when money is to be paid, on the happening of a contingency or uncertain event, no cause of action accrues, until the contingency happens, or the event takes place; as when the terms of subscription to the capital stock of a corporation bind the stockholders, as in this case, to pay on demand, at a particular place, subject to a call by the board of directors, a cause of action does not accrue, until a call is made by the company. Glenn v. Semple, 80 Ala. 162; Massie v. Byrd, supra; 2 Pars. Notes & B. 639-644. Where a note is made payable at a particular place, it is unnecessary, in order to fix the liability of the maker, to present it at the place of payment, and in a suit on the note to aver such presentation. Sims v. Bank, 73 Ala. 248; Connerly v. Insurance Co., 66 Ala. 433; Clark v. Moses, 50 Ala. 326; Montgomery v. Elliott, 6 Ala. 701. The complaint in this case, however, alleges that the call was made by the board of directors of the plaintiff corporation, and demand for payment was then made at plaintiff's office in Gadsden. It was incumbent on the...