Knox v. Rivers Bros.

Decision Date14 December 1920
Docket Number1 Div. 391
Citation88 So. 33,17 Ala.App. 630
PartiesKNOX v. RIVERS BROS.
CourtAlabama Court of Appeals

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Assumpsit by L.J. Knox against the firm of Rivers Bros., and the individuals composing the firm. From a judgment sustaining demurrers to the complaint as well as a judgment for the defendant, the plaintiff appeals. Reversed and remanded.

Stevens McCorvey & McLeod, of Mobile, for appellant.

Gordon & Edington, of Mobile, for appellee.

SAMFORD J.

The questions presented by this appeal arise on the court's ruling on demurrer to the following count:

"Plaintiff claims of the defendant $800 due on a bill of exchange drawn by the defendant on, to wit, the 2d day of February, 1918, for the payment of $800 to the plaintiff which said bill of exchange is in substance as follows:

"No ______.

O.K. by ______.

"Taylor, Lowenstein & Co.,

"Naval Stores Factors & Exporters.
"Second 2 and 2

1918.

"Pay to the order of L.J. Knox $800.00 eight hundred dollars for Rivers Bros., value received, and charge to account of __________.

"To Taylor, Lowenstein & Co., Mobile, Alabama.

"Plaintiff alleges that the said bill of exchange was duly presented to the said Taylor, Lowenstein & Co., and the payment thereof refused; that the said bill is still due and unpaid.
"Wherefore, plaintiff claims of the defendant the sum of $800, with interest thereon from February 2, 1918."

It is urged that the count fails to allege that defendant signed the bill, because the averment "duly presented" in the complaint is a mere conclusion of the pleader.

"A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to order or bearer." Section 126, Acts Leg. 1909, Sp. Sess. p. 146.

When a promissory note is declared on, we say the defendant "made" the note, which is an allegation that he signed it as well as the other acts necessary to make it a binding obligation. This is recognized in Code, § 5382, subd. 1. When a bill of exchange is drawn, it means, not only the body of the writing, but its signing as well. Without the signature it is not a "bill of exchange" as defined by the statute. This is recognized in section 5382, Code 1907, subd. 3. When therefore, the averment is made that the bill of exchange declared on was "drawn" by defendant, it was equivalent to saying that it was signed by defendant, and on the trial would require proof to that effect.

The makers or drawers may place their names on any part of the instrument where they may prefer to...

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