Darby v. Berney Nat. Bank

• Decision Date: 01 December 1892
• Citation: 11 So. 881,97 Ala. 643
• Parties: DARBY v. BERNEY NAT. BANK.
• Court: Alabama Supreme Court

11 So. 881

97 Ala. 643

DARBY v. BERNEY NAT. BANK.

Supreme Court of Alabama

December 1, 1892

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Action by the Berney National Bank against S. J. Darby on a promissory note. From a judgment for plaintiff, defendant appeals. Affirmed.

The defendant pleaded six pleas. The first was the general issue the second, third, and fifth were in the following language (2) "For further answer to said complaint, defendant pleads want of consideration. (3) For further answer to said complaint defendant says that long before June 28, 1888, one J. C. Westbrook became indebted to plaintiff by note in the sum of two thousand dollars, and that, when said paper became due, said Westbrook failed to pay same, and that plaintiff refused to extend the time for the payment of same unless said J. C. Westbrook executed a new paper, with sureties; and that said Westbrook did execute to plaintiff the paper sued on, and defendant signed his name to same as a surety wherefore defendant pleads that no consideration for his said signature passed to defendant." (5) "Defendant, for further answer to complaint, avers and pleads that when said note became due, he, being a surety thereon, requested plaintiff to collect same from J. C. Westbrook defendant's principal, the said Westbrook at that time having ample means wherewith to pay said indebtedness; but that plaintiff refused and failed to proceed against said principal, and that now said Westbrook has departed this life, and his said estate is insolvent; wherefore defendant prays the judgment of this court that he is not liable to plaintiff in this court." The substance of the fourth and sixth pleas are sufficiently stated in the opinion. The plaintiff demurred to the several special pleas of the defendant, and, among other grounds, assigned the following: To the second, that the plea was too vague and uncertain; to the third plea, that it shows that the said note was supported by legal consideration; to the fourth and sixth pleas, that said pleas fail to show any other fact than that J C. Cobbs, cashier, failed to file said note as a claim against the insolvent estate of Westbrook; and to the fifth plea, that said plea fails to show that said request was in writing, or that any statement was made upon plaintiff to sue Westbrook. The court sustained each of the demurrers to the several pleas. Issue was joined on the general issue, and the cause was then tried without the intervention of a jury. The court rendered judgment for the plaintiff, and the defendant now prosecutes this appeal, and assigns as error the various rulings of the lower court upon the several demurrers.

B. K. Collier, for appellant.

Webb & Tillman, for appellee.

MCCLELLAN J.

Action by the Berney National Bank on a promissory note executed by S. J. Darby, the defendant, and one Westbrook, who is not sued. The complaint alleges that said note was "payable *** to the plaintiff by the name and style of 'J. B Cobbs, Cashier,' and that the said J. B. Cobbs was at the time of making said note cashier of the plaintiff bank, and that the plaintiff was intended to be designated as payee by the use of the words 'J. B. Cobbs, Cashier."' There was no indorsement of the paper by Cobbs; and the point is taken by demurrer that the complainant shows the legal title to the note to be in Cobbs, and hence that plaintiff was without right to maintain this action. The authorities are opposed to this position, and the law may be said to be well settled that in a case like this the legal title is in the bank, and it may sue in its own name, averring either that the promise was made to its agent for it, or that the agent's name was used by adoption for that of the principal. The demurrer was properly overruled. 2 Daniel, Neg....