Carmelich v. Mims
| Decision Date | 14 December 1889 |
| Citation | 88 Ala. 335,6 So. 913 |
| Parties | CARMELICH v. MIMS. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Mobile county; W. E. CLARKE, Judge.
This action was one brought by the appellee, L. Mims, against the appellant, Frank W. Carmelich, and counts on a promissory note, which is alleged in the complaint as a promissory note payable at a bank to the order of the maker, and by him indorsed to the plaintiff before maturity. In addition to the plea of the general issue, four special pleas were interposed, to each of which a demurrer was sustained by the court. Failure of consideration and fraudulent misrepresentation are, respectively, set up by the second and third pleas, in the way of general averments, without any statement of the facts which constituted such failure of consideration and fraudulent misrepresentation. The demurrer to each of these pleas assigns their failure to state such facts as the defect in the plea. The fifth plea, made under oath, sets up that the plaintiff was not the owner of the note, or the party really interested, but that it belonged to a third person. The demurrer is upon the ground that the complaint showed that the note sued on was payable in bank and was indorsed to the plaintiff before its maturity. The fourth plea sets up a failure of consideration, as resting upon the following facts: The plaintiff was the general agent of an insurance company, and employed a subagent, who solicited the defendant to take out policies. The latter agreed to take out two policies, upon the agreement of the subagent that they should contain certain provisions, and that they should be delivered to him with such provisions embraced in them. Upon this agreement the defendant made and delivered to the said subagent the promissory note sued on before the two policies were issued. Two policies were afterwards delivered to the defendant, and upon carefully reading them over, "within a reasonable time thereafter," he found that the special conditions agreed on were not incorporated therein, but that their provisions were different from those promised to him. He thereupon sent them to the office of the insurance company, and demanded the return of the note, and has not heard from them since. The plea does not set forth the provisions of the policies actually delivered to him, nor does it show when he examined or returned them. The demurrers to this fourth plea were upon these two grounds: "Because the same fails to show in what respect the policies issued to defendant differed from those promised to him; *** because the same fails to set forth the policies therein referred to, or their provisions;" and "because the same shows that the policies therein referred to were delivered to and accepted by defendant, and does not show when he read and examined the same, nor when he returned the same and demanded the note." The court sustained the demurrers to each of the pleas of the defendant, and the defendant now prosecutes this appeal, and assigns such rulings of the court below in sustaining the said demurrers as error.
Overall & Bestor, for appellant.
R H. Clarke, for appellee.
1. The second and third pleas were manifestly demurrable in failing to state the facts which in the one case constituted the alleged "failure of consideration," and in the other the...
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... ... ( Ala., etc., Co. v. Marion Co., 145 Ala. 684, 40 ... So. 100), the policy delivered and that agreed upon were ... different ( Carmelich v. Mims, 88 Ala. 335, 6 So ... 913) "failure of consideration" or "fraudulent ... misrepresentation" merely ( Phoenix Ins. Co. v ... Moog, 78 ... ...
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