Gates v. Morton Hardware Co.

• Decision Date: 17 February 1906
• Parties: GATES v. MORTON HARDWARE CO.
• Court: Alabama Supreme Court

40 So. 509

146 Ala. 692

GATES v. MORTON HARDWARE CO.

Supreme Court of Alabama

February 17, 1906

Rehearing Denied April 3, 1906.

Appeal from City Court of Bessemer; William Jackson, Judge.

"Not officially reported."

Action by the Morton Hardware Company against T. A. Gates. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This was an action on a note. The note was attested by two witnesses, but its execution was not attempted to be shown by either witness, nor was their absence accounted for. Objection was urged to the introduction of the note on this account. The second, third, and fourth assignments of error were to rulings on questions as follows: Witness Scroggins was asked by defendant "to tell the jury whether or not he asked or requested the Morton Hardware Company to charge the account to Gates," and "to tell the jury whether or not Gates acted as his surety to the Morton Hardware Company for the debt," and "to tell the jury whether or not he ever consented for Gates to execute his individual note in payment of the debt to Morton Hardware Company." The tenth assignment of error was to the sustaining of plaintiff's objection to the request that the witness look at the note and tell the jury whether or not the note had two witnesses on it when he signed it, and whether two witnesses were called to witness the note at the time it was executed. The eighteenth assignment of error was to the overruling of an objection to a question by plaintiff's attorney to witness Morton whether they charged the account to Scroggins and whether they looked to Scroggins for the payment of the account. The twentieth assignment of error was to the ruling when plaintiff's attorney asked witness Morton to tell the jury the conversation which took place at the time the note was signed. The twenty-first assignment: Witness replied to preceding question: "Gates told me he was instructed by his attorney not to pay the account, as it would injure him in the suit he had against O'Gara, and asked me to give him more time on same, and that he would give a note payable 90 days after date." The twenty-second assignment Witness Morton said that in the conversation with Gates he did not tell Gates he would prosecute Scroggins. The twenty-third assignment: Plaintiff's attorney asked witness when Gates first denied his liability on the note and witness answered: "After this suit had been instituted."

The plaintiff requested the following written charges, which were given: Charge 1: "The court charges the jury that the note sued on is prima facie evidence of a sufficient consideration for the execution thereof, and the burden of proof is on the defendant to show that there was no consideration." Charge 2: "The court charges the jury that, if they believe from the evidence that the note sued on was given by the defendant in payment of or for a debt due by him to plaintiff, the plaintiff is entitled to recover." Charge 3: "The court charges the jury that if they are satisfied from the evidence that Gates agreed to see that the account of Scroggins was paid, and such account was charged to Gates with his consent, and the plaintiff extended no credit to Scroggins, but looked alone to Gates for payment of the account, the plaintiff is entitled to recover."

Pinkney Scott, for appellant.

B. C Jackson, for appellee.

SIMPSON J.

This was a suit on a promissory note, and the only pleas were the general issue and that there was no consideration for the note. The objection to the introduction of the note was properly overruled. Code 1896, § 1801.

Referring to the second, third, and fourth assignments of error: If there was error in sustaining the objections to the questions, it was error without injury, as the witness subsequently answered them in substance. As to the transaction in question, it was a question of law whether certain facts made the obligation the original contract of defendant, or whether his obligation was that of surety.

The overruling of defendant's objection to the question to the witness Gates (assignments 6, 7, and 8), if error, was without injury, as...