Green v. Ray

Decision Date19 March 1931
Docket Number6 Div. 846.
Citation133 So. 46,222 Ala. 509
PartiesGREEN, SUPERINTENDENT OF BANKS, v. RAY.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by D. F. Green, as Superintendent of Banks, liquidating the Bank of Woodlawn, against E. A. Ray. From a judgment for defendant, plaintiff appeals. Transferred from the Court of Appeals.

Reversed and remanded.

Wilkinson & Burton and Frank A. Wilkinson, all of Birmingham, for appellant.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellee.

GARDNER J.

The note here sued upon was executed by defendant, payable to the Woodlawn Savings Bank, the affairs of which are now being administered by the state superintendent of banks.

The defense is a want of consideration, the defendant insisting that the note was but the result of a scheme of Dr. Bell president of the bank, to promote a sale of stock amounting to $40,000 for Dr. Wallace in the Fraternal Hospital. The testimony of defendant's witnesses tends to establish this defense and to show that no consideration moved to defendant, nor was it understood that any consideration whatever was to move to him, but that the note with the stock thereto attached was to remain with Dr. Bell until Dr. Stephens, to whom the sale was negotiated, should pay the note and take up the stock. It is without dispute that no money was paid defendant by the bank, and no credit given for any amount on account thereof.

Plaintiff insists that the testimony of the witnesses, embracing transactions with Dr. Bell, the deceased president of the bank, establishing the above-noted defense, was incompetent as violative of section 7721, Code of 1923, and directs attention, first, to that of Dr. Wallace, shown to be a stockholder in the bank. Buye v. Ala. Marble Quarries, 199 Ala. 589, 75 So. 9.

But it is an answer to this objection that this witness was called to testify by defendant, the party to whom the interest of the witness as a stockholder is opposed. The argument therefore overlooks this exception in the statute. Section 7721, Code, supra; German v. Brown, etc., 145 Ala. 364, 39 So. 742; Kirby v. Brooks, 215 Ala. 507, 111 So. 235.

The objection to the testimony of the witness Emens is likewise not well taken. The witness is not a party to this suit, and no judgment can here be rendered against him, nor will the judgment rendered be legal evidence for or against him in another action.

Under the rule established by the decisions construing this statute, the mere fact that he also executed a note as a part of Dr. Bell's scheme, which note is held by the bank, does not render him incompetent as pecuniarily interested in this suit. Hardy v. Killingsworth, 174 Ala. 322, 56 So. 965; Oliver v. Williams, 163 Ala. 376, 50 So. 937; Madison v. Robinson, 95 Fla. 321, 116 So. 31.

But the defense above noted presented a question for the jury. The note was signed by defendant in the original sum of $5,100 payable to the Woodlawn Savings Bank, and found among its assets, and placed on the liability account of defendant with said bank. In the space on the face of the note left blank for description of collateral securities are the words "50 Fraternal Hospital," and attached to said notes were five certificates of stock of the Fraternal Hospital, duly issued in defendant's name; each certificate being in the amount of ten shares. Defendant admits that this stock was issued to him and put in his hands, and that he turned it over to Dr. Bell; that the Fraternal Hospital subsequently failed and went out...

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3 cases
  • Taylor v. First Nat. Bank of Tuskaloosa
    • United States
    • Alabama Supreme Court
    • July 21, 1966
    ...had employed defendants, the defendants were then competent to give in evidence the entire transaction with deceased. In Green v. Ray, 222 Ala. 509, 133 So. 46, in an action on a note, plaintiff contended that the testimony of witnesses, embracing transactions with the deceased president of......
  • Skipper v. Wright & Colquett
    • United States
    • Alabama Court of Appeals
    • March 17, 1942
    ... ... principal stockholder of the corporation), other reasons ... aside, there was also consideration for that promise to pay ... The consideration need not necessarily pass from the promisee ... nor need the benefit be for the promisor. It may be for some ... third party. Green v. Ray, 222 Ala. 509, 511, 133 ... So. 46; 10 C. J.S., Bills and Notes, p. 602, § 148, subsec ... The ... conclusion of this court is that the judgment should be ... affirmed and it is so ordered ... ...
  • Oates v. Lee
    • United States
    • Alabama Supreme Court
    • March 19, 1931

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