Hardegree v. Riley

• Decision Date: 23 May 1929
• Docket Number: 7 Div. 872.
• Parties: HARDEGREE v. RILEY.
• Court: Alabama Supreme Court

122 So. 814

219 Ala. 607

HARDEGREE v. RILEY.

7 Div. 872.

Supreme Court of Alabama

May 23, 1929

Rehearing Denied June 20, 1929.

Appeal from Circuit Court, Clay County; E. S. Lyman, Judge.

Action by O. A. Riley against R. M. Hardegree. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Hardegree & Cockrell, of Ashland, for appellant.

C. W McKay, of Ashland, for appellee.

SAYRE J.

The complaint contained several counts, one declaring on a promissory note, the rest the common counts. Printed on the back of the note offered in evidence was the following:

"__________ hereby guarantee payment of the within note, including interest and attorney's fee, waiving presentment for payment, protest and notice of protest and all claims of exemption to real or personal property under the laws of Ala."

And then below in pencil:

"Balance 49.91 and interest.

$10.00 Feb.

15.00 Mch.

15.00 Apr.

15.00 May

15.00 June

15.00 July

--------------

85.00

27.00

--------------

112.00 85."

By way of laying a predicate for his contention that the general charge against his plea of non est factum should not have been given, appellant, defendant below, argues that the memoranda indorsed upon the note in suit had been placed there at the time of the execution of the face of the note thereby becoming an integral part thereof, and had been changed subsequently, and hence that the charge was erroneously given. As to whether the memoranda had been made that time the note was given, or later, the testimony was in conflict. In Seymour v. Farquhar, 93 Ala. 292, 8 So. 466, this court held that the following matter in print on the back of a promissory note: "It is hereby expressly agreed and understood by and between the holder and maker of this note that," etc., was a part of it to all intents and purposes as if it had been set forth in the body of the instrument, citing text-books and adjudicated cases from other jurisdictions. The indorsements on the note here involved do not measure up to the mark of that decision. The printed matter is incomplete, the blank is unfilled, this indicating a lack of intention to adopt that matter as a part of the note. The pencil memoranda, by themselves considered, are meaningless. A change in one of them-and that is the extent of the change contended for-operated in no wise to change the obligation of the face of the note, and, whether made at the time of the execution of the note or subsequently, failed to make available the plea of non est factum. The real consideration for a promissory note or bill of exchange, and the terms and conditions upon which it is payable, or by which payment may be avoided, may, as between the parties, be shown by parol, provided, of course, the terms of the instrument be not contradicted. Jefferson County Bank v. Compton, 192 Ala. 16, 68 So. 261; Blum v. Mitchell, 59 Ala. 535; and numerous cases shown in the note to 22 C.J. p. 1164. The memoranda to which we have referred were admissible in aid of the memory of the witness or witnesses who were privy to their making. Acklen v. Hickman, 63 Ala. 494, 35 Am. Rep. 54, and Alabama cases cited in note under page 894 of 22 Corpus Juris.

The court committed no error in giving written charge 5 requested by plaintiff to the effect that the jury could not find for defendant under his plea of payment. The plea of tender was an admission of indebtedness.

Defendant filed a plea of usury. The evidence tended to show that interest in excess of the lawful rate was charged on plaintiff's books against defendant in some instances but there is none to the effect that the original contract was usurious, nor even that defe...