Caton v. First Nat. Bank

• Decision Date: 10 June 1924
• Docket Number: 4 Div. 897
• Citation: 20 Ala.App. 384,102 So. 369
• Parties: CATON v. FIRST NAT. BANK OF OZARK.
• Court: Alabama Court of Appeals

102 So. 369

20 Ala.App. 384

CATON v. FIRST NAT. BANK OF OZARK.

4 Div. 897

Court of Appeals of Alabama

June 10, 1924

Rehearing Denied June 24, 1924

Affirmed on Mandate Dec. 16, 1924

Appeal from Circuit Court, Covington County; W.L. Longshore, Judge.

Action on promissory note by the First National Bank of Ozark against R.A. Caton. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

A Whaley, of Andalusia, for appellant.

W.S Huey, of Enterprise, and E.O. Baldwin, of Andalusia, for appellee.

BRICKEN P.J.

The First National Bank of Ozark, Ala., plaintiff in the court below brought its action in assumpsit, to recover of R.A. Caton defendant in the court below, certain money alleged to be due by promissory note. The defendant interposed his plea of the general issue, and a verified plea that the plaintiff was not the owner of the instrument sued upon. There was judgment for the plaintiff, and defendant appeals.

The complaint contained but one count, and declared upon a promissory note alleged to have been executed by defendant on the 22d day of March, 1921, and payable to G.P. Dowling Hardware Company, or order on the 1st day of October, 1921, and by the payee thereof indorsed and negotiated to plaintiff.

Issue was joined between plaintiff and defendant on defendant's plea of the general issue; i.e., non assumpsit and defendant's special and verified plea that plaintiff was not the owner of the instrument sued upon. In support of its complaint the plaintiff offered in evidence a certain instrument in writing which, among other things, purports to have been executed at Red Level, Ala., March 22, 1921, and which purports to be payable to G.P. Dowling Hardware Company, Ozark, Ala., or order, in the sum of $658.50; the instrument contains a provision covering attorney's fees, costs of collection, and recordation of the said instrument; the instrument also conveys to the payee certain personal property to secure the payment of the above amount, "as well as all else we may now or hereafter owe to the said G.P. Dowling Hardware Company before the payment thereof," and the payee of said instrument is authorized before or after the maturity of said instrument to seize and sell the personal property thereby conveyed for the payment of the amount, or amounts, thereby secured. The instrument concludes with the clause; "Given under our hands and seals this 22d day of March, 1921, R.A. Caton. [L.S.]." Said instrument was witnessed by two witnesses, and had documentary stamps to the amount of 14 cents attached thereto.

The defendant objected to said instrument being offered in evidence upon the grounds that the instrument offered was not the paper referred to and sued on; that the instrument offered in evidence was not a promissory note, and was not the paper sued upon in this case. The court overruled the defendant's objections to the introduction of said instrument, and the defendant excepted. The objection and exception are founded upon the contention that the instrument sued upon was not a promissory note, but was a bond, or specialty. The same question was presented by the defendant's request for the general charge; the attention of the trial court being directed to the fact that defendant claimed there was a variance between pleadings and proof. The trial court refused to give the general charge for defendant, and defendant again excepted. A motion for a new trial raised the same question, and this motion was overruled and denied by the trial court, and the defendant again reserved his exception to this action of the court.

The sole question, as we understand this record, is whether or not there was a variance between the pleadings and the proof. The complaint seeks the recovery of money alleged to be due by a promissory note. The defendant answers the complaint, and says that I owe you nothing by promissory note. And thus the issue is clearly presented.

The appellant asserts that the instrument sued upon is plainly a negotiable instrument, and refers us to the case of Bledsoe v. City National Bank of Selma, 7 Ala.App 195, 60 So. 942. See Ex parte Bledsoe, 180 Ala. 586, 61 So 813. In Bledsoe's Case it is specifically stated: "The complaint averred the facts and set out the instruments sued on, in haec verba, showing the same to be negotiable instruments, etc.," and this is what differentiates Bledsoe's Case from the case at bar in so far as to whether or not the instrument sued on is a promissory note or a bond, or specialty. In Bledsoe's Case the plaintiff says I sue you for so much money due upon this instrument and sets out the instrument. In the case at bar the plaintiff could have brought its suit upon the instrument alleged to have been executed by defendant, setting out the instrument, but this the plaintiff did not...