Cobbs v. Bryant

• Decision Date: 01 March 1889
• Citation: 5 So. 586,86 Ala. 316
• Parties: COBBS ET AL. v. BRYANT.
• Court: Alabama Supreme Court

5 So. 586

86 Ala. 316

COBBS ET AL. v. BRYANT.

Supreme Court of Alabama

March 1, 1889

Appeal from circuit court, Geneva county; J. M. CARMICHAEL, Judge.

This suit was brought by J. C. Bryant against the appellants, A A. Cobbs et al., and was founded on a promissory note alleged to have been given by defendants to the Singer Manufacturing Company. There was a sworn plea by defendant Cobbs denying the execution of the note as to himself, and also denying the ownership of the note by plaintiff. Upon the evidence defendants asked the court to charge the jury in writing "that if they believed the evidence they must find for the defendants." The court refused to give this charge, and the defendants duly excepted, and now assign this refusal by the court as error. There are other assignments of error, which it is not necessary to set out or notice on this appeal.

W D. Roberts, for appellants.

J F. Roper, for appellee.

SOMERVILLE J.

The note sued on is payable to the Singer Manufacturing Company or bearer, in the sum of $70.50. Under the provisions of section 1761 of the Code, a bond, bill, or note, except those issued to circulate as money, "if payable to an existing person or bearer, must be construed as if payable to such person or order." Code 1886, § 1761; Blackman v. Lehman, 63 Ala. 547. Construing the note to be payable to the payee named, or order, and there being no indorsement of the instrument by the payee,-no written order directing its payment to another,-the legal title was clearly not in the plaintiff, Bryant. The note being a contract for the payment of money, and at the same time not being commercial paper, an action on it could be prosecuted in the name of "the party really interested," or the beneficial owner, whether he had the legal title or not. Code 1886, § 2594. The title of the plaintiff is disputed by a sworn plea denying that he is the beneficial owner, in accordance with the requirements of rule of practice No. 29 (Code 1886, p. 810,) and this cast on the plaintiff the burden of proving such ownership. Ordinarily possession of personal property is prima facie evidence of ownership, but the possession of an agent does not prove an ownership in him of the principal's property. The plaintiff is shown to have been the agent of the Singer Manufacturing Company, the payee of the note. This suit was originally brought before the justice's court in his name as such agent, and was...