First Nat. Bank v. Blue

• Decision Date: 10 June 1924
• Docket Number: 4 Div. 905.
• Parties: FIRST NAT. BANK OF UNION SPRINGS v. BLUE.
• Court: Alabama Court of Appeals

101 So. 75

20 Ala.App. 107

FIRST NAT. BANK OF UNION SPRINGS v. BLUE.

4 Div. 905.

Court of Appeals of Alabama

June 10, 1924

Rehearing Denied June 24, 1924.

Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.

Action for damages for breach of contract by J. H. Blue against the First National Bank of Union Springs. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Blue &amp Blue, of Union Springs, and James J. Mayfield, of Montgomery for appellant.

George W. Andrews, of Union Springs, for appellee.

BRICKEN P.J.

The case made by the record is as follows: Appellee sued appellant bank in the circuit court of Bullock county. The complaint consisted of three counts. The first was trover the second was a common count for money had and received; the third was a special count claiming damages for breach of a contract. The alleged contract was a promissory note executed by the plaintiff to the defendant bank on the 23d day of April, 1921, for $400. The note was payable on demand. At the bottom of the note was the following:

"*** Having deposited with them as collateral security W. H. Rcts. for 9 B. C. (with authority to sell the same at public or private sale, or otherwise, at their option, on the nonperformance of this premise and without notice)."

The third count concludes as follows:

"Wherefore plaintiff alleges that he was damaged by the act of said defendant in selling his said cotton in the sum of one thousand dollars ($1,000.00). Wherefore this suit."

While this count does not set out specifically or clearly the alleged breach, it is evident from the record that the alleged breach was the selling by the defendant of the nine bales of cotton without notice to the plaintiff.

The trial was had on the general issue, and resulted in a verdict and judgment for the plaintiff under the third count for $424.21, from which judgment the defendant bank prosecutes this appeal.

Only two errors are assigned: First, the refusal of the trial court to give the general affirmative charge for the defendant; second, that the trial court erred in allowing the plaintiff to introduce testimony as to the price of cotton during the month of September, 1921.

We are of the opinion that the plaintiff showed no right to recover damages of the defendant under any count of the complaint. The verdict, specifying that it is for the plaintiff as for the third count of the complaint, of course was tantamount to a verdict for the defendant under the other two counts. We are unable to find from this record any breach by the defendant of any contract between it and the plaintiff, or of any duty growing out of a contract between it and the plaintiff, without which proof, of course, the plaintiff could not recover under the third count of the complaint.

The evidence wholly fails to show any contractual obligation or duty on the part of the defendant to the plaintiff which was breached by a sale of the nine bales of cotton in question without notice of such sale being given in advance to the plaintiff, which is the whole theory of plaintiff's cause of action. There is no proof of any promise, written or oral, made by the defendant to the plaintiff, which was breached, nor were any facts proven which showed any duty, contractual or otherwise, resting upon the defendant to notify plaintiff of the sale of the nine bales of cotton in question.

The note referred to, which is claimed to be the contract that was breached, was not signed by the defendant, of course, it being a mere promissory note by the plaintiff to the defendant. The note by its terms was payable on demand, and therefore was due upon delivery, or immediately after delivery. The law is well settled that suit may be brought upon a demand note at any time after delivery, without further notice or demand; that the statute of limitation begins to run in favor of a demand note from the time of its delivery; and that the holder of such note may sue the maker without further notice. O'Neil v. Magner, 81 Cal. 631, 22 P. 876, 15 Am. St. Rep. 88; Pringle v. Dunkley, 14 Smedes & M. (Miss.) 16, 53 Am. Dec. 111; Kraft v. Thomas, 123 Ind. 513, 24 N.E. 346, 18 Am. St. Rep. 345; Lewis v. Tipton, 10 Ohio St. 88, 75 Am. Dec. 498; 3 R. C. L. 1211; Turner v. Iron Chief Min. Co., 74 Wis. 355, 43 N.W. 149, 5 L. R. A. 533, and note, 17 Am. St. Rep. 168.

It is shown by the evidence without dispute that...