Holder v. Brooks
| Decision Date | 17 June 1954 |
| Docket Number | 8 Div. 760 |
| Parties | HOLDER et ux. v. BROOKS. |
| Court | Alabama Supreme Court |
H. H. Conway, Albertville, for appellants.
Clark E. Johnson, Jr., Albertville, for appellee.
Plaintiffs, C. R. Holder and wife, sued on a promissary note and defendant having filed several pleas, the cause came on for trial. Plaintiffs offered the note in evidence while their first witness was on the stand and the court sustained objections to its introduction. Plaintiffs amended the complaint and the court again sustained objections of defendant, whereupon plaintiffs took a non-suit on the adverse ruling of the court and appealed to this court.
The amended count reads:
'The plaintiff claims of the defendant the sum of $1019.44 due by promissory note made by him on the 23rd day of April, 1951, and made payable on the 23rd day of February, 1952, to The Glidden Company by whom the said note for value transferred in writing, by endorsement by the Vice-President of said Glidden Company, to plaintiff on the 5th day of Feb. 1953 and plaintiffs aver that they are the owner of said note with the interest thereon is still unpaid and that defendant waived all his right to claim exemption as to personal property in said note and plaintiff claims the benefit of said waiver of exemption.'
The note was dated April 23, 1951, and the promise was to pay $1019.44 to The Glidden Company on the 23rd day of February, 1952, and was signed by O. E. Brooks and C. R. Holder.
The assignment of the note reads:
'The Glidden Company
'By /s/ J. A. Peters
'Vice President
'(SEAL)'
If the note as introduced in evidence had conformed to the description set out in the complaint and was not otherwise subject to objection, there would be no error in permitting it to be introduced.
But the note here is not such as there decribed in that, instead of being executed by the defendant, it was executed by both the defendant and one of the plaintiffs. The material difference is between an instrument alleged to have been executed by the defendant and one executed both by defendant and one of the plaintiffs.
The assignment clearly shows that it is made to one of the makers of the note and another and also recites, 'Said note has been discharged by payment from C. R. Holder (one of the assignees and one of the makers) to The Glidden Company.'
In order for plaintiff to have the benefit of §§ 77 and 78, Title 9, Code of 1940, it is necessary for the complaint to show that the plaintiff, C. R. Holder, and the defendant were joint makers of the note and therefore each was surety of the other to the extent of the share of the other. § 77, Title 9, Code of 1940. In order to be subrogated under § 78, supra, that allegation should be made in the complaint. Without the benefit of §§ 77 and 78, the right of subrogation would be equitable and not available at law. Thrasher v. Neely, 196 Ala. 576, 72 So. 115; Anniston Banking & Loan Co. v. Green, 197 Ala. 567, 73 So. 81; Bradley v. Bentley, 231 Ala. 28, 163 So. 351; 40 Am.Jur., Payment, § 152....
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Continental Bank & Trust Co. v. Alabama General Ins. Co.
...at law or in equity, but in order to obtain its benefits as to a judgment at law, the statute must be strictly observed. Holder v. Brooks, 261 Ala. 127, 73 So.2d 355. It has been an oft-stated general rule that before subrogation can be enforced the whole debt must be paid because there sho......
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City of Birmingham v. Trammell
...268, 128 So. 220. Subrogation is equitable in nature, but by sections 78 and 87, Title 9, Code, it is available at law. Holder v. Brooks, 261 Ala. 127, 73 So.2d 355. Section 247, supra, provides the machinery for enforcing the right at law. That machinery was pursued in this case. Sections ......
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Ex parte Diamond
...available at law on the theory of an implied promise. Spragins v. McCaleb, 237 Ala. 658, 188 So. 251 (1939); see also Holder v. Brooks, 261 Ala. 127, 73 So.2d 355 (1954). There is no need to resort to an implied promise in the present case, however, because the partnership agreement express......
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In re Cauley
...law, only the surety who had paid debt can claim rights of subrogation. Alabama Code (1975), Section 8-3-2, 8-3-5, Holder v. Brooks, 261 Ala. 127, 73 So.2d 355 (1954). Any rights of subrogation would have been rights belonging to H.S. Morgan, had he paid the bank. Bradley v. Bentley, 231 Al......