Brown v. Johnson Bros.

• Decision Date: 12 February 1903
• Citation: 135 Ala. 608,33 So. 683
• Parties: BROWN v. JOHNSON BROS.
• Court: Alabama Supreme Court

33 So. 683

135 Ala. 608

BROWN v. JOHNSON BROS.

Supreme Court of Alabama

February 12, 1903

Appeal from circuit court, Hale county; John Moore, Judge.

Action by Johnson Bros. against William Brown. From a judgment for plaintiffs, defendant appeals. Affirmed.

The case was once before in this court, and is reported in 127 Ala. 292, 28 So. 579, 51 L. R. A. 403, 85 Am. St. Rep. 134. The plaintiffs sued as original payees of the note. Among the pleas filed was one of non est factum, setting up an alteration in the note after defendant signed it; another denying that plaintiffs were the beneficial owners of the note; and another (plea "d") setting up that, prior to the commencement of the action, plaintiffs had transferred and assigned said note to one G. B. Johnson. Plaintiffs, by replication, set up: (1) That said assignment to Johnson was a general assignment for the benefit of creditors; that subsequently, and before the commencement of this suit, the plaintiffs settled with all of their creditors, and it was agreed that said assignment should be held for naught, and the note sued on was returned to plaintiffs by said G. B Johnson, and that plaintiffs at the time of the commencement of this suit were, and now are, the beneficial owners of said note. (2) That at the time the suit was brought the plaintiffs were, and they are now, the beneficial owners of said note. The defendant objected to the filing of these replications on the ground that they were a departure from the original cause of action, in that plaintiffs sued originally as payees of the note, and not as the beneficial owners thereof. This objection was overruled and defendant excepted. Thereupon defendant demurred to said first replication upon the grounds (1) That it showed that G. B Johnson was the owner of the legal title to said note; (2) that said Johnson was not made a party plaintiff to the suit (3) because the suit was not brought in the name of said G B. Johnson for the use of plaintiffs; (4) because said replication did not aver that said note was assigned or transferred in writing to plaintiffs; (5) because said replication fails to aver the names of the persons by whom it was agreed that said assignment should be treated and held for naught. The grounds of demurrer to the second replication to said plea were (1) because it fails to aver in what manner they acquired the beneficial ownership of said note; (2) because it fails to aver or show who are the beneficial owners of said note, if it is not said G. B. Johnson; (3) because it fails to aver that said note was, prior to the commencement of this action, transferred or assigned to plaintiffs. These demurrers having been overruled, defendant set up by rejoinder that said note was not, prior to the commencement of the suit, reassigned or retransferred to the plaintiffs by any written indorsement on said note, or by any other written indorsement or other writing of any kind. A demurrer to this rejoinder on the ground that such written transfer or assignment was not necessary was sustained. The rulings of the court upon the admission of evidence are sufficiently shown by the opinion. In the course of his argument to the jury, plaintiffs' counsel said, "If these pleas be true, then they charge the plaintiffs with forgery." Defendant objected to this statement, and moved that it be excluded from the jury. This motion the court overruled, and defendant excepted. Charge 2 requested by defendant was as follows: "If the jury are satisfied from the evidence that the note sued on was given to secure future advances to be made to the defendant, then the burden of proving...