Howard v. Rhodes

• Decision Date: 17 December 1918
• Docket Number: 4 Div. 551
• Citation: 17 Ala.App. 26,81 So. 362
• Parties: HOWARD v. RHODES.
• Court: Alabama Court of Appeals

81 So. 362

17 Ala.App. 26

HOWARD v. RHODES.

4 Div. 551

Court of Appeals of Alabama

December 17, 1918

Rehearing Denied Jan. 14, 1919

Appeal from Circuit Court, Pike County; A.B. Foster, Judge.

Action by Toombs Howard, trustee, against J.F. Rhodes. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

A.G Seay and J.H. Wilkinson, both of Troy, and McCutchen &amp Bowden, of Columbus, Ga., for appellant.

W.L. &amp R.S. Parks, of Andalusia, for appellee.

BROWN P.J.

This is an action by the payee of a promissory negotiable note against the indorser, and the questions presented by this appeal were developed by the defense of "no consideration" and the statutes of fraud presented by the defendant's special pleas. The case was submitted to the court without the intervention of a jury, on the evidence offered by the plaintiff, consisting of the note and the indorsement thereon in these words, "Indorsements, R.D Turnage, J.F. Rhodes," and the testimony of the plaintiff, which developed the following facts: R.D. Turnage & Co., a corporation under the laws of Georgia, was indebted to three different creditors in different amounts aggregating $1,054.75, the indebtedness of one of such creditors being evidenced by the notes of Turnage & Co., and the others were open accounts. All of these debts being past due on the occasion the note was given, the creditors informed the debtor that they would not further indulge him, and that, unless these debts were paid or secured, suits would be instituted at once. The matter was thereupon adjusted by the execution and delivery of the note in suit, which is made payable on demand to the plaintiff as trustee for the three creditors, and which was, contemporaneously with its execution and delivery, indorsed by Turnage and Rhodes, and accepted as payment of the indebtedness due the three several creditors; the evidence of such indebtedness held by the creditors being surrendered to the debtor. Several payments were made by the payee, all of which were credited on the note, the last payment being January 9, 1917. After demand and failure to pay the balance, this suit was instituted. Notice of demand and nonpayment and protest is expressly waived in the face of the note by the maker and indorsers. This statement differentiates this case from the authorities relied upon by appellee.

In the case of Hood v. Robbins & Smith, 98 Ala. 487, 13 So 574, and the case of Zadek v. Forscheimer, 77 So. 941, recently decided by this court, in which the defense of no consideration was sustained, the indorsement was made after the execution and delivery of the note in suit, and not contemporaneously with its execution and delivery, as here. In Richardson v. Fields, 124 Ala. 535, 26 So. 981, the only consideration for the execution of the note was an indebtedness due from the Blount College, a corporation, to Dr. Lovett. The Blount College was not a party to the transaction, and there was nothing in that case showing that Lovett accepted the note in payment and satisfaction of the indebtedness due him from the college. The question in Sweeney v. Bixler, 69...