First Nat. Bank v. Morgan

• Decision Date: 07 May 1925
• Docket Number: 7 Div. 553
• Parties: FIRST NAT. BANK OF GADSDEN v. MORGAN.
• Court: Alabama Supreme Court

104 So. 403

213 Ala. 125

FIRST NAT. BANK OF GADSDEN v. MORGAN.

7 Div. 553

Supreme Court of Alabama

May 7, 1925

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

Action for money had and received and for conversion by John T Morgan against the First National Bank of Gadsden. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Miller J., dissenting.

Goodhue & Lusk, of Gadsden, for appellant.

Culli Hunt & Culli, of Gadsden, for appellee.

BOULDIN J.

The trial in the circuit court was begun upon a count for money had and received and plea in short by consent. The tendencies of the testimony, so far as now material, were:

Plaintiff, John T. Morgan, borrowed from First National Bank of Gadsden, defendant, the sum of $50. To secure the loan plaintiff gave his note and a note on T.J. Griffin, payable to plaintiff, for $500, as collateral security. The collateral note was described in and attached to the note given by plaintiff. After the maturity of both notes, they were found in the possession of Griffin. On the theory that Griffin had paid the collateral note, the suit was brought to recover the amount collected by the bank in excess of the debt secured by the collateral. Some evidence for plaintiff, in connection with possession of the note by the maker, tended to support the count for money had and received.

The defendant's evidence tended to show that Griffin, being indebted to the bank on past-due paper in numerous sums aggregating some $15,000, negotiated a new loan to take up this paper; that in the list of paper so taken up and paid was the $50 note due from Morgan to the bank secured by note on Griffin as collateral; that this $50 note, with the $500 note attached, was retained by the bank as collateral to Griffin's $15,000 note; and that on subsequent payment of the $15,000 the two notes were by mistake surrendered to Griffin.

On the conclusion of the evidence plaintiff, by leave of the court, over the objection of defendant, amended the complaint by adding a count in trover. There was evidence for plaintiff on this count for the amount of the Griffin note, less the amount of plaintiff's debt to the bank.

Counts ex delicto may be joined with counts ex contractu arising out of same transaction or relating to same subject-matter; the issues to be determined separately by the jury. Code 1923, § 9467(5329). Counts may be added by amendment which could have been included in the original complaint. Code 1923, § 9513(5367). One purpose of amendment is to avoid multiplicity of suits by permitting statements of the cause of action in various alternatives to meet the different phases of evidence.

Inconsistency between the various between the various counts is no ground of objection. Gambill v. Fox Typewriter Co., 190 Ala. 36, 66 So. 655; Crawford v. Mills, 202 Ala. 62, 79 So. 456. The fact that it is not apparent from the pleading whether the amended count relates to the "same transaction, property and title" as the original is not ground of demurrer. Identity of the subject-matter in such case is a question of fact for the jury and not of law for the court. So reads the statute. Code 1923, § 9513(5367); Pearson v. City of Birmingham, 210 Ala. 296, 97 So. 916; Brown v. Loeb, 177 Ala. 106, 58 So. 330. The issue of departure or misjoinder in such case may be presented by objections to evidence in support of the different counts, and by instructions to the jury.

Appellant relies upon the case of Cox v. Awtry, 211 Ala. 356, 100 So. 337, in support of the demurrer for misjoinder. The holding in that case is not in harmony with the former cases above cited, and, in so far as in conflict with the present decision, is overruled.

The special insistence presented in argument is that there could be no joinder of the counts in assumpsit and trover because plaintiff, suing in assumpsit, waived the tort and is bound by his election.

Whether, and in what cases, the doctrine of election applies as to counts in the same suit is not presented by this record. Conceding, without deciding, that, where it affirmatively appears from the pleading the existence of the cause of action in one count depends upon the waiver of the cause of action stated in another, or where the same situation develops from the evidence in the cause, the measure of damages being different, an election may be required by the court, there was evidence in this cause in support of each count, regardless of the waiver of a tort. Plaintiff was entitled to go to the jury on both.

The measure of damages for the conversion of the note was prima facie its face value, less the incumbrance thereon. If of less value by reason of insolvency of the maker, this was...