Copeland v. Keller, 8 Div. 178.

• Citation: 221 Ala. 533,129 So. 571
• Decision Date: 28 June 1930
• Docket Number: 8 Div. 178.
• Parties: COPELAND ET AL. v. KELLER.
• Court: Alabama Supreme Court

129 So. 571

221 Ala. 533

COPELAND ET AL. v. KELLER.

8 Div. 178.

Supreme Court of Alabama

June 28, 1930

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Bill for reformation of a promissory note by J. D. Copeland and others against M. T. Keller. From a decree dismissing the bill, complainants appeal.

Modified and affirmed.

A. G Bates, R. M. Sims, and Geo. E. Barnett, all of Florence, for appellants.

A. A Williams, of Florence, for appellee.

BOULDIN J.

The decree sustaining demurrer to the amended bill, and giving complainant "thirty days in which to amend the bill of complainant, in default of which said bill of complaint will stand dismissed from this court at the cost of the complainant," did not ipso facto put the cause out of court.

The appeal is properly taken from the final decree dismissing the cause upon failure to further amend. Lide v. Park et al., 132 Ala. 222, 31 So. 360; Daggett v. Boomer, 210 Ala. 673, 99 So. 181.

This brings up for review the interlocutory decrees theretofore rendered sustaining demurrers to the original and amended bills, from which no appeals were prosecuted under the thirty-day statute. Code, § 6079.

The original bill was filed by the transferees of a promissory note against the makers and an indorser thereon for reformation as to the amount payable.

The note as executed was as follows:

"Florence, Ala., Feb. 15, 1926. No.-

"Eleven months, I, after date, without grace, for value received I promised to pay to W. B. Copeland, or order, $400.00, Four and No/100 Dollars, till due Jan. 15, 1927."

It contained further stipulations for attorney's fee, waiver of exemptions, etc., not material to be set out.

The bill alleges the consideration was the sale of property from the payee to the makers for the sum of $400, to be evidenced by a promissory note for that sum to be executed by the makers, "with the defendant M. T. Keller, as indorser thereon. *** That in the execution of said note, a mutual mistake was made, that in drawing up said note, the figures $400.00' were placed in the body thereof, but in the wording of the amount of said note (which governs in law, or takes precedence over the figures used) it read 'Four Dollars' instead of 'Four Hundred Dollars' as intended by the payee, and the other parties thereto. That if plaintiffs are mistaken in the execution thereof as aforesaid being a mutual mistake, then they allege in the alternative that it was a mistake on the part of the payee, W. B. Copeland in drawing up said note in making the wording of the amount read 'Four' dollars instead of 'Four Hundred Dollars,' which mistake the other parties thereto at the time knew or suspected."

The general equity jurisdiction to reform written instruments so that they shall express the true agreement of the parties extends, as of course, to negotiable promissory notes. 23 R. C. L. p. 313, § 7.

Under the Negotiable Instruments of Law, where the sum payable is expressed in words and also in figures, the words control, if not themselves uncertain. Code, § 9045, subd. 1.

If in fact the figures express the true intent of the parties, the remedy at law is therefore inadequate.

The original bill was not multifarious because the contractual obligations of the makers and of the indorser are separate and distinct-the one primary, and other secondary; the one absolute, the other conditioned upon taking the legal steps required to charge an indorser.

The bill shows the indorser was an original party to the instrument. His status is defined by Code, § 9090, saying:

"Where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules:

"(1) If the instrument is payable to the order of a third person, he is liable to the payee and to all subsequent parties," etc.

A note payable, as here, to a named person, or order, is a note "payable to order" within the meaning of the Negotiable Instruments Law. Code, §§ 9029, 9036.

In case of mutual mistake on the part of all the original parties, all of whom have given assent to the same thing, a reformation may be had as to all, fixing their several obligations according to the real agreement, make the document bespeak the true agreement as to all.

The general demurrer, no equity in the bill, was the only ground upon which several defects in the original bill, here presented, were challenged.

The second alternative above quoted, charging no more than that the indorser "suspected" the mistake, was defective on apt demurrer.

There must be a common assent to the same thing, a mistake in expressing such agreement. The mistake must be mutual; that is to say, ...