Clayton v. Jordan

• Decision Date: 26 April 1923
• Docket Number: 7 Div. 371.
• Citation: 96 So. 260,209 Ala. 334
• Parties: CLAYTON v. JORDAN.
• Court: Alabama Supreme Court

96 So. 260

209 Ala. 334

CLAYTON v. JORDAN.

7 Div. 371.

Supreme Court of Alabama

April 26, 1923

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

Action by L. C. Jordan against O. W. Clayton. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, section 6. Affirmed.

J. V Curtis and C. A. Wolfes, both of Ft. Payne, for appellant.

Isbell & Scott, of Ft. Payne, for appellee.

McCLELLAN J.

The action was instituted by appellee against appellant. The complaint contains two counts. In the first count the plaintiff impleaded defendant as an indorser of two negotiable instruments of even date, promising to pay different sums on different dates, executed by one Nix to defendant, and for value, before maturity, transferred by indorsement in blank by the defendant to the plaintiff. The demurrer complained of misjoinder of causes of action through the inclusion in a single count of defendant's liability as indorser of two distinct negotiable instruments. Such a transfer created in the indorsee an original cause of action. Sherrill v. Bank, 195 Ala. 175, 178, 70 So. 723. Capital City Ins. Co. v. Quinn, 73 Ala. 558, 560. The indorsement of these negotiable instruments invested the indorsee, contingently, with distinct causes of action that could not be properly joined in a single count. Friddle v. Braun, 180 Ala. 556, 61 So. 59. The demurrer was erroneously overruled; but, since the defendant admitted the transfer of the instruments to the plaintiff as averred in the complaint, and that he had not paid them, and since the undisputed testimony established the fact that the payor had not paid the notes, and, since the only matter contested, in this aspect of the case, was whether defendant's liability as indorser became fixed through seasonable appropriate, effective notice to him of dishonor (Code, §§ 5043, 5055, 5057), no possible prejudice resulted to defendant from the erroneous overruling of his demurrer taking the objection of misjoinder, and, hence, reversible error cannot be predicated of this action. Rule 45 (175 Ala. xxi, 61 South. ix).

The second count was not defective. It declared upon an account "for the balance due on an automobile sold by the plaintiff to the defendant," which was averred to be due and unpaid. The count sufficiently disclosed that the sum claimed was due from defendant, the buyer, to the plaintiff, the seller.

Special instruction A, given at plaintiff's instance, conformed to the regulatory rule for the mailing of notice of dishonor prescribed by Code, § 5057. It was not error to give this instruction. While the charge did not in terms refer to the evidence before the jury, this omission did not render the instruction affirmatively faulty. If the...