First Nat. Bank of Tuscaloosa v. Leland

• Decision Date: 07 February 1899
• Citation: 122 Ala. 289,25 So. 195
• Parties: FIRST NAT. BANK OF TUSCALOOSA v. LELAND.
• Court: Alabama Supreme Court

25 So. 195

122 Ala. 289

FIRST NAT. BANK OF TUSCALOOSA v. LELAND.

Supreme Court of Alabama

February 7, 1899

Appeal from circuit court, Tuscaloosa county; S. H. Spratt, Judge.

This action was brought by the First National Bank of Tuscaloosa against Ella M. Leland. Upon the introduction of all the evidence, the court at the request of the defendant gave to the jury the general affirmative charge in her behalf, to the giving of which charge the plaintiff duly excepted. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. Affirmed.

Frank S. Moody and Jones & Brown, for appellant.

Foster & Oliver, for appellee.

HARALSON J.

1. The appellant sued the appellee on two bills of exchange, each drawn by appellee,-who was the wife of W. A. Leland, though the complaint does not show that fact,-in favor of the appellant, the plaintiff below, on W. A. Leland & Co., one bearing date, 18th March, 1893, for $150, payable on 20th May, 1893, the other for $423.65, dated 13th April, 1893, and payable on 15th July, 1893, each bill containing by indorsement on its back signed by defendant, a waiver of exemptions as to personal property, and a waiver of presentment, protest and notice thereof.

The defendant pleaded two pleas to the complaint, the first "that she was, at the time of the making of said bills of exchange, and now is, a married woman, the wife of W. A Leland, that said bills of exchange were given to secure renew, or extend a debt, owing to plaintiff by her said husband, W. A. Leland, she standing in the relation of surety on said bills of exchange for her said husband," and the second, "that at the time of the making of the bills of exchange sued on, she was a married woman, W. A. Leland being her husband, and that she did not have the assent in writing of her said husband, to make the contracts here sued on."

Under our statutes, if either of these pleas was true, it presented a good and meritorious defense to the suit; and if both were true, they presented a double defense to the maintenance of the action.

The plaintiff demurred to the first plea on many grounds, among them, that the plea does not show that W. A. Leland & Co., the acceptors of the bills, is the same person as W. A. Leland, the defendant's husband; that the bills of exchange show that the debts are those of defendant, the drawer or of W. A. Leland & Co., the acceptors, the only parties to the bills; that the plea does not aver, that W. A. Leland & Co. are the same as W. A. Leland, the defendant's husband, and she cannot contradict the written contract, by saying that the debt secured by the bill is the debt of a stranger; that she cannot contradict the written instruments by showing that the debtor is a party other than one of those who the said bills show are the debtors, and for the further reason, that if it be true as averred in the plea, that the debts secured by the bills are the debts of W. A. Leland, the defendant is estopped from setting up that fact against the plaintiff, because the defendant drew said bills on W. A. Leland & Co., and cannot now be heard to say as a defense to an action thereon, that W. A. Leland & Co. is not a corporation or a partnership composed of two or more persons.

The plea on its face does not show that the defendant is estopped to set up the defenses thereby interposed. The matter of estoppel set up in the demurrer arises dehors the plea, and the demurrer setting up such facts is a mere speaking demurrer. It was an attempt to reach by demurrer, that which should have been set up by replication to the plea. Matters of estoppel in pais are the subjects of pleas in bar.

2. The plea itself, furthermore, plainly enough shows, that the debts sued on were the debts of W. A. Leland, the defendant's husband; and that W. A. Leland, of W. A. Leland & Co., whether that firm consisted of W. A. Leland alone, doing business under a firm name, or in partnership with others, was the husband of the defendant. If it was true as averred in the plea, that the bills sued on, "were given to secure, renew, or extend debts of her said husband, W. A. Leland, and that she stands in relation of surety on said bills of exchange for her said husband," it could scarcely make any difference who composed said firm, if said Leland was a member of it, or whether it consisted of one or more persons trading under a name indicating a partnership. Code, § 2529 (2349); McNeil v. Davis, 105 Ala. 657, 17 So. 101; Clement v. Draper, 108 Ala. 211, 19 So. 25; Richardson v. Stephens, 114 Ala. 238, 21 So. 949. The name of Leland & Co. imports a partnership, but if a person does business under a firm name, the reputed firm may be sued by such name, and the execution will run against the partnership in name, leviable only on its property, being in the nature of a proceeding in rem, and not in personam. Birmingham Loan & Auction Co. v. First Nat. Bank, 100 Ala. 249, 13 So. 945. The demurrer to the plea was properly overruled.

3. The defendant below, under the provisions of Code, § 1850 (2816) filed interrogatories to the plaintiff. One of the officers answered the interrogatories. The answers were not responsive to the...