Jackson v. Sample

• Citation: 236 Ala. 486,183 So. 646
• Decision Date: 06 October 1938
• Docket Number: 8 Div. 908.
• Parties: JACKSON ET AL. v. SAMPLE ET AL.
• Court: Supreme Court of Alabama

183 So. 646

236 Ala. 486

JACKSON ET AL. v. SAMPLE ET AL.

8 Div. 908.

Supreme Court of Alabama

October 6, 1938

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Action on promissory note by A. E. Jackson and L. G. Burk, as administrator of the estate of T. R. Ryan, deceased, against A. D. Sample and John T. Cooper. From a judgment for defendants, plaintiffs appeal.

Reversed and remanded.

E. W Godbey, of Decatur, and J. G. Rankin, of Athens, for appellants.

Eyster & Eyster and Harris & Harris, all of Decatur, for appellees.

FOSTER Justice.

This case was here on former appeal. 234 Ala. 75, 173 So. 510.

Upon the trial on remand, the pleas in abatement were amended. Plea 1 in abatement, as amended, was held to be good, and on a trial of it, there was a verdict for defendant. Demurrer to plea 2 was sustained.

The question on this appeal is to be determined by the sufficiency of plea 1 as thus amended. The substance of the amendment, so far as here material, is to the effect that when the note, which is made payable on demand was executed the payees agreed with the defendants in connection with a sale of all the stock of the Hartselle Motor Company as the consideration of the note, "that they would make no demand on the defendants for the payment of said note until the profits of the Hartselle Motor Company were sufficient to pay said note, (and that said agreement) was breached in that the Hartselle Motor Company has not made any profits and the demand has been made by the plaintiffs by the bringing of this suit." The ruling that the demurrer to this plea be overruled brings up the same principle considered on former appeal.

We there pointed out the apparent confusion in our cases on the subject, and that the case of Jefferson County Savings Bank v. Compton, 192 Ala. 16, 68 So. 261, asserted a doctrine too broad in its general terms. Moreover, it was dictum. We also showed that in several cases we have held that such collateral agreement must not change the material features of the note, but that the condition on which a note is payable, which may be shown by parol, must relate in essence to its consideration or its value in some aspect whether so expressed.

But we held on former appeal that a note payable on demand has a well defined definite meaning as to its maturity. A demand is not necessary as the authorities cited show to make the note due. It is due at once. A covenant not to make demand until a contingency occurs is an attempt to change the stipulated date of maturity; and would be somewhat the same principle as an agreement fixing some definite time in the future for maturity, different from that as stipulated in the note. Such an agreement changes the tenor of the note by changing the date of its maturity. Davenport & Harris Undertaking Co v. Roberson, 219 Ala. 203, 121 So. 733.

This plea goes only to the question of whether the suit was begun before the note was due. It was not so begun according to its terms, which cannot be changed in that respect by a contemporaneous parol agreement. We do not wish to intimate that the collateral agreement set up in the plea in abatement is such as to be available in...