Empire Guano Co. v. Ellis

• Decision Date: 13 November 1923
• Docket Number: 6 Div. 241.
• Citation: 98 So. 38,19 Ala.App. 463
• Parties: EMPIRE GUANO CO. v. ELLIS.
• Court: Alabama Court of Appeals

98 So. 38

19 Ala.App. 463

EMPIRE GUANO CO. v. ELLIS.

6 Div. 241.

Court of Appeals of Alabama

November 13, 1923

Appeal from Circuit Court, Blount County; O. A. Steele, Judge.

Action by the Empire Guano Company against D. A. Ellis. From a judgment for defendant, plaintiff appeals. Affirmed.

James Kay, of Oneonta, for appellant.

Ward Nash & Fendley, of Oneonta, for appellee.

BRICKEN P.J.

The appellant brought its action against appellee in the court below, to recover the sum of $125.25, with accrued interest and the additional sum of $20 as a reasonable attorney's fee, all alleged to be due under a certain promissory note which is set out in the bill of exceptions.

The defendant interposed several pleas: (1) The general issue; (2) non est factum; (3, 4, and 5) interposed the defense of an alteration in the note sued on after its execution, without the knowledge or consent of the maker; (6) failure of consideration.

The complaint alleged that the note in question was executed by defendant on April 5, 1920, and was payable to Goddard Bros. & Copeland, and was indorsed to the plaintiff, the Empire Guano Company, for a valuable consideration before maturity and in the usual course of trade.

Plaintiff demurred to defendant's pleas 3, 4, 5, and 6 upon the four grounds noted in the demurrer. The first four assignments of error are predicated and based upon the action of the trial court in overruling the demurrers.

The ruling of the trial court upon the demurrers in question is not available to appellant for the reason that the record fails to show any judgment of the trial court upon said demurrer. The bill of exceptions contains a statement that the court overruled the plaintiff's demurrer to defendant's pleas, but this is no more than a bench entry, and, besides, it is not the office of a bill of exceptions to show the judgment of the trial court on demurrer.

The judgment of the trial court on plaintiff's demurrer not being shown by the record proper, this court cannot consider assignments of error based upon the action of the court in overruling said demurrers. Ala. Fuel & Iron Co. v. Vaughan, 205 Ala. 589, 88 So. 857; Seaboard Air Line Ry. Co. v. Pemberton, 202 Ala. 55, 79 So. 393.

The fifth and sixth assignments of error are predicated upon the action of the trial court in finding the issue involved in the case in favor of the defendant, and in entering judgment accordingly.

It is the contention of appellant that the note sued on is a negotiable instrument under the commercial law, and that the same was in the hands of a bona fide purchaser for value without notice of its defects, defenses, or imperfections. The defendant (appellee in this cause), however, interposed in the court below his pleas of alteration, failure of consideration, and non est factum. It is true that a plea of failure of consideration, or want of consideration, or of alteration, would be immaterial in a suit on a negotiable instrument. by an innocent purchaser thereof for value, but said pleas should have been eliminated, either by a motion to strike or proper demurrer, and the ruling of the trial court should have been invoked upon said motion or demurrer, and the judgment of the trial court thereon should be shown by the record.

The judgment entry here recites that issue was joined between the plaintiff and defendant. So, then, the only question for this court to consider is whether or not the defendant offered sufficient proof in support of his immaterial pleas. Plea 3 asserts that-

The "note sued on has been materially changed in this Words and figures '1,000 lbs. of F. 10-0-4' have been inserted in the face of said note since execution thereof without the knowledge or the consent of the said defendant."

Plea No. 4 asserts that-

The "note herein sued on has been materially changed in this: Words and figures '2,000

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