Cowan v. Campbell

• Decision Date: 27 November 1901
• Citation: 31 So. 429,131 Ala. 211
• Parties: COWAN ET AL. v. CAMPBELL.
• Court: Alabama Supreme Court

31 So. 429

131 Ala. 211

COWAN ET AL. v. CAMPBELL.

Supreme Court of Alabama

November 27, 1901

Appeal from circuit court, Marshall county; John A. Bilbro, Judge.

Action on a note by C. C. Campbell, for the use of E. O. McCord against J. W. Cowan and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This action was brought to recover the balance due upon a promissory note. The balance consisted solely of an attorney's fee stipulated for in the note. The note was given to C. C. Campbell as guardian for Mamie Arnold, and turned over to the latter in settlement of the accounts of the former as guardian. Mamie Arnold delivered the note to McCord, the beneficial plaintiff, as an attorney, for collection. The beneficial plaintiff collected the principal and interest of the note after maturity, and the note was delivered to him for his fee. The proof tended to show that Mamie Arnold informed McCord when the note was delivered for collection that it provided for an attorney's fee, and she would not be liable for the same, but it must be made out of the makers, and that subsequent to the collection of the principal and interest the note was delivered by her to McCord. There were pleas setting up the defense that an extension of the time of payment was agreed upon, but no consideration was shown for such agreement. The opinion sufficiently discloses the other facts. There were verdict and judgment for plaintiff, and defendants appeal.

O. D Street, for appellants.

John A Lusk, for appellee.

McCLELLAN C.J.

This action was begun by McCord. The complaint was afterwards amended by making Campbell, to the use of McCord, the plaintiff. The action being upon a negotiable promissory note payable to Campbell, and not indorsed by him, and the beneficial interest being in McCord, it was necessary for the action to be prosecuted by Campbell; but the amendment making him the nominal plaintiff, to the use of McCord, did not work an entire change of parties. McCord was still the real, as he had before been the sole and real, party plaintiff. Code, §§ 28-30.

On the averments of the complaint, the attorney's fee stipulated for in the note was due and payable, just as any part of the principal would have been due and payable had it not been previously paid, and it was no defense to the action for the fee that the principal and interest had been paid. The action was simply for a balance due on...