Folmar v. Siler

• Decision Date: 13 February 1902
• Citation: 132 Ala. 297,31 So. 719
• Parties: FOLMAR v. SILER.
• Court: Alabama Supreme Court

31 So. 719

132 Ala. 297

FOLMAR v. SILER.

Supreme Court of Alabama

February 13, 1902

Appeal from circuit court, Pike county; John P. Hubbard, Judge.

Action by W. B. Folmar against W. D. Siler. Judgment for defendant and plaintiff appeals. Affirmed.

During the argument of plaintiff's counsel, he stated to the jury what was the testimony of one of the witnesses examined on the trial. The defendant's counsel interrupted plaintiff's counsel, and objected to the statement as to what said witness testified, upon the ground that said witness did not testify as stated by plaintiff's counsel. The bill of exceptions states that "in settling the dispute the court instructed the jury" that the witness referred to did not testify as stated by the attorney for the plaintiff. To this statement of the court the plaintiff duly excepted. The plaintiff separately excepted to the following portions of the court's general charge to the jury "(1) As long as Stacy remained in the employment of plaintiff after the notes sued on were signed, the notes should be credited with twenty dollars per month for the time he remained in said employment, if the jury find that plaintiff agreed to so credit the notes, and if the said employment and agreement were a part of the consideration for signing the notes; and this credit should be given although the jury might find that Stacy made a default after signing the notes. (2) If the plaintiff held out to the defendant as an inducement to sign the notes the promise that he would not prosecute Stacy for the misappropriation of the money, and this was the moving or principal cause which induced the execution of the notes by defendant, or if plaintiff made with defendant an agreement that he would not prosecute Stacy for the misappropriation of the money, and that was the principal or moving cause to defendant to sign the notes then the notes are void as to defendant W. D. Siler." The plaintiff requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(5) If the jury believe the evidence, find for plaintiff. (6) If W. D. Siler signed the note sued on as surety for his son the consideration of the note is not the price paid W. D Siler for signing the note, but the price paid his son, the principal in the note. (7) Although plaintiff may have agreed to employ Stacy Siler for two years, and to credit his wages except $15 per month, on this note, and although, under this agreement, Stacy Siler was employed by the plaintiff for a few months, plaintiff was under no duty to retain Siler in employ, or credit any amount for the time he had been employed, if Siler misappropriated more of Folmar's money than, under the agreement, should have been so credited. (8) The consideration of a surety for signing a note is the consideration of the principal. (9) Although plaintiff have agreed to employ Stacy Siler for two years, and to credit his wages, except $15 per month, on this note, and although plaintiff did not so employ Stacy Siler, plaintiff is not under any duty to credit same, if Stacy Siler continued to misappropriate plaintiff's money, which fact should justify plaintiff in discharging Stacy Siler from his employment." The court, at the request of the defendant, gave to the jury the following written charges, to the giving of each of which the plaintiff separately excepted: "(1) If the jury are reasonably satisfied from the evidence that the only or any material part of the consideration which defendant received for signing the notes sued on was an agreement or promise of Folmar, the plaintiff, to keep secret the misuse or misappropriation of six hundred dollars of Folmar's money by Stacy Siler, and Stacy Siler admitted in the presence of Folmar and defendant that he had misused or misappropriated $600 of Folmar's money, then the jury should find for defendant. (2) If the jury are reasonably satisfied from the evidence that the agreement between Folmar and defendant was that the notes were to be made due and payable one and two years after date, and that Folmar went off and wrote the notes, and came back to where Siler was, and said to defendant, Siler, 'Here are the notes, made out according to the agreement,' and defendant, Siler, relying upon the truth of Folmar's statement, signed the two notes, believing that they were due one and two years after date, respectively, the jury must find for the defendant. (3) If the jury are reasonably satisfied from the evidence that Folmar agreed with and promised Siler that, if he would sign the notes sued on, he would keep secret the misuse of the $600, and this was a material part of the consideration which caused defendant to sign the notes sued on, the jury must find for defendant." There were verdict and judgment for defendant. The plaintiff appeals,...