Glass v. Mayer

• Decision Date: 21 November 1899
• Citation: 26 So. 890,124 Ala. 332
• Parties: GLASS v. MAYER ET AL.
• Court: Alabama Supreme Court

26 So. 890

124 Ala. 332

GLASS v. MAYER ET AL.

Supreme Court of Alabama

November 21, 1899

Appeal from circuit court, Perry county; John Moore, Judge.

Action by Mayer, Son & Co. against E. R. Glass on promissory notes. Upon the introduction of all the evidence the court, at the request of the plaintiffs, gave the general affirmative charge in their behalf, and to the giving of this charge the defendant duly excepted. There were verdict and judgment for the plaintiffs. The defendant appeals, and assigns as error the rulings of the trial court to which exceptions were reserved. Affirmed.

J. W Bush, for appellant.

Pitts &amp Pitts and J. H. Stewart, for appellees.

TYSON J.

This action was instituted by the plaintiffs as transferees and holders of two promissory notes, negotiable and payable at the Planters' & Merchants' Bank of Uniontown Alabama, for value before maturity. The complaint contained two counts, declaring upon each of the notes sued upon, and alleged in legal effect what we have said above. To the complaint the defendant filed two pleas. A demurrer was sustained to the plea first filed by him. Plea No. 2, as amended, was in substance as follows: That on the 1st day of January, 1892, one Pullen, the payee in the note sued upon, sold to Emma Glass a stock of merchandise, which sale was evidenced by a contract in writing executed by Pullen and Emma Glass. And the defendant, as part of the consideration to be paid for said goods, signed the name of Emma Glass to the notes sued upon, as her agent, disclosing to Pullen the name of his principal, and averring that she alone is liable on said notes. This plea was sworn to. The plaintiffs filed three replications to this plea: "(1) And the said plaintiffs reply to and take issue on the plea of defendant numbered 2, this by amended, and again filed. (2) And for further replication to said plea the plaintiffs say that when the said notes sued on were executed the said Emma Glass, in said plea named, was a married woman, the wife of said defendant, and the said defendant had no lawful authority to sign the name of said wife to said notes sued on." The third replication averred the sale of the stock of merchandise by Pullen to the defendant, under the name of E. Glass, the execution of the notes by him, and denied that defendant disclosed to Pullen at any time that he was acting as agent for his wife, Emma Glass. We have set out with particularity the plea and the replications thereto, in order that it may be clearly understood what the issues in the cause were, when tried in the circuit court. The testimony offered by the defendant tended to support the averments of his plea; and upon issue raised by plaintiffs' first replication, which was no more than taking issue upon the plea, it became a question of fact for the determination of the jury.

The second replication of the plaintiffs, upon which issue was joined by the defendant, raised two issues of fact. The first was whether or not Emma Glass was a married woman, the wife of the defendant. The second was whether or not defendant had authority to sign her name to the notes so as to legally bind her. The sufficiency of the plea or of this replication was not tested by demurrer. With their sufficiency the circuit court had nothing to do, and neither have we. Parties have the right to try their causes upon such issues as they choose. And if the cause is tried upon an insufficient or immaterial plea or replication, without objection being first taken by demurrer, the judgment of the court must be pronounced in accordance with the result of the issues. Mudge v. Treat, 57 Ala. 1; Brock v. Railroad Co. (A...