Lawrence v. Tennessee Valley Bank

• Citation: 224 Ala. 692,141 So. 664
• Decision Date: 24 March 1932
• Docket Number: 8 Div. 379.
• Parties: LAWRENCE v. TENNESSEE VALLEY BANK.
• Court: Supreme Court of Alabama

141 So. 664

224 Ala. 692

LAWRENCE v. TENNESSEE VALLEY BANK.

8 Div. 379.

Supreme Court of Alabama

March 24, 1932

Rehearing Denied May 26, 1932.

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson Judge.

Action on promissory notes by the Tennessee Valley Bank against O G. Lawrence. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

Bradshaw & Barnett, of Florence, for appellant.

L. R Timberlake, of Florence, for appellee.

KNIGHT J.

Appellant, Lawrence, prosecutes this appeal from a judgment of the circuit court of Lauderdale county rendered on a verdict of the jury against him.

The evidence in the case shows that appellant executed to the Florence Scrap Metal Company, under date of November 12, 1929, his four negotiable promissory notes, each in the sum of $50, payable in thirty, sixty, ninety, and one hundred and twenty days thereafter, at the Tennessee Valley Bank. These notes were indorsed to the Tennessee Valley Bank before maturity. Default having been made in the payments of the notes at maturity, suit was brought thereon by the indorsee. The defendant originally filed six pleas; the first being the general issue. Plea 3 averred that the notes were without consideration, and also that the "party who transferred said notes to plaintiff had no title." And each of said pleas averred that the plaintiff, through its agent or servant acting within the line and scope of his employment, had knowledge of the facts when it claimed to have acquired the notes.

Plea 3, in so far as it averred that the party who transferred the notes to plaintiff had no title, falls within the class of pleas which must be verified, which was not done. Section 7663, Code.

No available objection to the plea was made, either by was of demurrer or motion to strike. Issue was joined thereon. To make good this plea, however, the defendant had the burden of proving: (1) That there was no consideration; (2) that the party who transferred them to plaintiff had no title; and (3) that plaintiff had knowledge of the facts, through its agent or servant acting within the line and scope of his employment, at the time it acquired the notes.

The evidence shows without conflict that T. C. Hennessee, O. C. Hackworth, Tom Mayberry, and J. J. Holt undertook to form a corporation to be known as Florence Scrap Metal Company. They were to be the incorporators. The papers for the incorporation of the company were filed in the office of the judge of probate of Lauderdale county, but nothing further was done to complete the incorporation. Hackworth was, at the time the above proceedings were being had, the vice president and manager of the Tennessee Valley Bank.

The plaintiff filed replications one and two to defendant's pleas two to six, inclusive, and thereafter amended the replications by adding to each the following averment: "That the plaintiff acquired the notes before maturity, for value and in due course, and without any knowledge of any infirmity." Thereafter defendant filed plea 7.

Appellant's first insistence for error is that the court erred in sustaining plaintiff's objection to the following question propounded by defendant to the witness Holt: "Do you know of any authority you had to transfer title of these notes to the Tennessee Valley Bank?" The objection assigned by the plaintiff was: "It was immaterial and irrelevant." The defendant's plea 3 averred "that the party, who transferred said notes to plaintiff, had no title to them." While plea 3, in so far as it sought to put in issue the plaintiff's title to the notes, was not sworn to, and therefore subject to demurrer on motion to strike, yet plaintiff took issue thereon, thus making the plea, for the purposes of the case, material. With this plea in the case, the title of the party, the payee, who transferred the said notes, was an issue before the jury, not the title of the agent of the payee, who acted for the payee in making the transfer. Under the pleas in this case, the evidence called for relevant and material evidence. Confessedly, Holt assumed to transfer the notes to the plaintiff. If he had authority to do this, he must have known what authority he had. In the case of Somerall et al. v. Citizens' Bank, 211 Ala. 630, 101 So. 429, 433, this question was propounded to the plaintiff's president, while testifying as a witness in the case: "Did Mr. Crum have any authority to make any statement for the Citizens' Bank that this note was bought on any conditions?" This court held the question was not subject to the objection that it called for a conclusion of the witness, and that there was better evidence. The witness was permitted to answer the question, the court observing: "We do not construe the question as asking for the witness' opinion on a question of law; we construe it as asking whether as matter of fact there was any usage of the bank or any express authority on the subject of the cashier's authority." Gould v. Cates Chair Co., 147 Ala. 629, 41 So. 675. We are therefore of the opinion that the court should have allowed the witness to answer the question, and, in sustaining plaintiff's objection to the question, it committed reversible error.

It is also insisted that the court committed error in sustaining plaintiff's objection to the following question propounded by defendant to himself, when testifying as a witness in his own behalf: "When were they (referring to the notes) to become effective." The question manifestly called for a conclusion of the witness. The objection actually assigned by the plaintiff to the question was: "Because it was illegal, irrelevant, and immaterial, and the record speaks for itself, and is the best evidence." The question being objectionable as calling for a conclusion, and the court having declined to permit the witness to make answer, the fact that plaintiff may have assigned untenable grounds of objection cannot serve to put the court in error. Clark v. State, 217 Ala. 229, 115 So. 295; Adams v. Southern R. Co., 166 Ala. 449, 51 So. 987, 991.

In the case last cited, the court observed: "The trial court was not bound to cast about for the grounds of objection but, if it did so and found tenable objection, appellant cannot complain." The writer confesses that he is not in sympathy or accord with this view of the law. He is of the opinion that, when one specific ground of objection is interposed, the objector thereby waives all other grounds. This seems to me to better comport with reason and fairness. While the writer entertains these views on the subject, he will yield those views out of deference to the recent ...