Johnson v. Hanover Nat. Bank

• Decision Date: 10 December 1889
• Parties: JOHNSON ET AL. v. HANOVER NAT. BANK.
• Court: Alabama Supreme Court

6 So. 909

88 Ala. 271

JOHNSON ET AL. v. HANOVER NAT. BANK.

Supreme Court of Alabama

December 10, 1889

Appeal from circuit court, Tallapoosa county; J. R. DOWDELL, Judge.

The present action was brought by the appellee, the Hanover National Bank of New York, against the appellants, J. C Johnson & Co., and counts on two promissory notes, which were indorsed by the defendants to the Rialto Guano Company, of Baltimore, Md., and which were by that company transferred to the plaintiff. The defendants pleaded: (1) that the plaintiff was not the owner of the notes sued on; (2) that the plaintiff is not a corporation duly authorized by law to maintain this suit; (3) non assumpsit; (4) failure of consideration; (5) want of consideration; (6) illegal consideration; and (7) "that the notes sued on were given for the purchase of commercial fertilizers, sold to defendants at Dadeville, in the state of Alabama; that the same were in bags, and that no tags prepared by the commissioner of agriculture, and printed thereon the word 'guaranteed,' with year or season in which they were to be used, and a fac simile of the signature of said commissioner thereon, [were on the bags;] and defendant avers that said sale was in violation of a penal statute of Alabama," (Code 1886, §§ 4153, 4154.) On motion of the plaintiff to strike from the file the pleas numbered 2, 3, 4 5, and 6, the court ordered the same stricken from the file and the defendants thereupon excepted. Upon the trial of the case, as shown by the bill of exceptions, the plaintiff introduced in evidence the notes, which were the basis of the suit. It was shown by the defendants that the contract under which the guano or fertilizer were shipped to the defendants and under which the notes were executed by the defendants, was made and signed by both parties thereto at Dadeville, Ala., and that the notes declared on in this action were also signed by the defendants in Dadeville, Ala., and were made payable at the "Bank of Opelika, at Opelika, Ala.;" and that the only consideration for the said notes was the fertilizer bought under the contract above referred to. And it was further shown that the fertilizer came in sacks, and that no tags were attached to any of such sacks; but that some time after the said fertilizer was shipped to the defendants,-about a month or more,-the defendants received some tags through the mail, but did not know where they came from; that they put said tags on some of the fertilizer sold by them, but not on all of it. On this evidence the plaintiff asked the court, in writing, to give the general affirmative charge in its favor, which the court did, and the defendants duly excepted.

There was judgment for the plaintiff, and the defendants now appeal, and assign the rulings of the court on the pleadings, and the giving of the charge requested by the plaintiff, as error.

W. D. Bulger and John A. Terrill, for appellants.

STONE C.J.

The present suit is brought on two notes, executed in Alabama, and payable "at the Bank of Opelika, a bank located in the city of Opelika, Alabama." We take this statement from the complaint, as the notes are not set out. The notes are described as being made payable to the order of the makers, and by them indorsed to the Rialto Guano Company, of Baltimore city, and by that company indorsed to the plaintiff, and now its property. The plaintiff is described in the complaint as "a corporation duly chartered and incorporated under and by authority of the laws of the state of New York."

Among other defenses, the defendants pleaded "that the Hanover National Bank of New York, the party plaintiff in this action, is not a corporation duly authorized by law to maintain this suit." This, although brief, contains all that is of substance in the plea of nul tiel corporation. The notes not being made payable to the plaintiff corporation by name, the defendants were not...