Cole v. Tuck

• Decision Date: 16 January 1896
• Citation: 19 So. 377,108 Ala. 227
• Parties: COLE v. TUCK.
• Court: Alabama Supreme Court

19 So. 377

108 Ala. 227

COLE v. TUCK.

Supreme Court of Alabama

January 16, 1896

Appeal from circuit court, Blount county; J. A. Bilbro, Judge.

Action by J. H. Tuck against C. E. Cole. Judgment for plaintiff, and defendant appeals. Reversed.

This was an action of assumpsit brought by the appellee, J. H Tuck, against the appellant, C. E. Cole. The complaint, as amended was as follows: "The plaintiff claims of defendant the sum of fifteen dollars with interest thereon due, on the following described note: '$21.00. Jan. 31st 1893. November first, after date, I promise to pay to the order of C. E. Cole twenty-one dollars, value received at _____. The right of exemption is hereby waived, as provided in the constitution and laws of the state of Alabama, or any other state in the United States, and it is further agreed that the undersigned shall pay all costs for collecting above, including a reasonable attorney's fee, on failure to pay at maturity. [Signed] E. C. Garigas. Witness: J. T Burnett.' The note sued on has the following indorsement on the back thereof: 'This is to certify that I hereby indorse $15 of the within note, this April 3, 1893. [Signed] C. E. Cole.' And plaintiff alleges that at the time of bringing this suit, and now, the note sued on was and is the property of plaintiff. Plaintiff further avers that he did not bring suit within 30 days after suit could be brought as the law directs against the maker, because by the acts or promises of defendant, plaintiff was induced to delay bringing suit against the maker. Plaintiff alleges that he did not bring suit against the maker of the note sued on within 30 days after the same became due, for the following reasons: (1) Because by the use of ordinary diligence the place of residence of the maker could not be ascertained of the maker could not be ascertained. (2) Because the plaintiff was induced to delay bringing suit thereon by the acts or promises of defendant in this, that before said 30 days had elapsed, defendant told and promised plaintiff that he would assume the amount here mentioned, that he would pay one Mr Lamb the amount here sued on, and have the said Lamb to give the plaintiff credit for the amount sued on, on a debt or demand which plaintiff owed the said Lamb. And plaintiff says that defendant went with plaintiff to see the said maker of the note sued on, and told plaintiff he would buy a wagon from the maker of the note sued on, and pay the amount sued on to plaintiff. And plaintiff says that defendant promised plaintiff if he would extend the time of payment of said note that defendant would execute his note to plaintiff for the amount sued on. Plaintiff further alleges that in said note the defendant agreed to pay attorney's fees for collection, and ten dollars is hereby claimed as such fee." To the complaint, as amended, the defendant demurred and assigned the following grounds: "(1) Because said complaint purports to be a suit on a note against the defendant, and it shows on its face that defendant is not a maker thereof or a joint maker. (2) Because said complaint does not aver or show that a suit had been brought against the maker of the note the subject of this suit. (3) Because said complaint is uncertain and indefinite. (4) Because said complaint does not set out the acts or show in what manner or in what way defendant delayed or hindered plaintiff from suing on the original note. (5) Because said complaint claims attorney's fees, when there was no such contract as shown by the indorsement set out in said complaint by which defendant agreed to pay attorney's fees. (6) Because said complaint does not aver or show that defendant agreed in any way to pay attorney's fees, and this demurrer is assigned to that part of the complaint which claims attorney's fees. (7) Because said amended complaint does not show such a state of facts as prevented the plaintiff from suing the original maker of said note before 30 days expired. (8) Because said amended complaint fails to show that there was any consideration passing from plaintiff to defendant, under the alleged statement or promises of the defendant as set out in said complaint." Each of these grounds of demurrer was overruled, and to this ruling the defendant duly excepted.

This action was instituted in a justice of the peace court and brought to the circuit court by appeal, and the amount involved being less than $20, the same was tried by the court, without the intervention of a jury, upon an issue joined upon the pleas of defendant in which he denied each and every allegation in the plaintiff's complaint whereupon the plaintiff introduced and offered in evidence a note substantially the same with indorsement thereon as set out in his complaint, and testifies substantially as follows Some time in the fall of 1893, a short time before said note was due, that he and defendant met together, and defendant requested him to make his money on said note; that he-defendant-told plaintiff, that the maker of said note lived in St. Clair county, Ala.; and that he had promised one George Phillips, the party to whom he had indorsed the note, that he-defendant-would go with said Phillips and show him where the maker of said note lived. That...