Long v. Gwin

• Decision Date: 28 November 1918
• Docket Number: 6 Div. 740
• Citation: 80 So. 440,202 Ala. 358
• Parties: LONG et al. v. GWIN.
• Court: Alabama Supreme Court

80 So. 440

202 Ala. 358

LONG et al. v. GWIN.

6 Div. 740

Supreme Court of Alabama

November 28, 1918

Appeal from City Court of Bessemer; G.F. Goodwyn, Special Judge.

Action by J.C.B. Gwin against R.H. Long and others upon promissory note. Judgment for plaintiff, and defendants Long and Newman appeal. Transferred from Court of Appeals under Acts 1911, p 449, § 6. Reversed and remanded.

The complaint declares for money due by bill single made by the defendants Newman and Long. The instrument offered in evidence is a promissory note negotiable and payable at Bessemer State Bank, signed by G.H. Smith, J.T. Busby, and T.F. Johnson on its face, and the names of these defendants and nine others are signed on its back. In this condition the note was given as security for money borrowed from plaintiff for the use of the Farmers' U.W. & P. Company, a corporation in which all these parties were interested as officers or stockholders. Defendants objected to the admission of the note on the grounds that it showed a variance from the complaint; that defendants were sued as joint makers, and the note showed them to be indorsers; that the complaint contained no allegation that these prima facie indorsements were intended as primary signatures; and that no proof had been offered of notice to defendants of dishonor after due presentment to the makers. This objection was overruled. The chief issue of the fact before the jury was whether these defendants signed the note with the intention and understanding that they were signing as comakers or only as indorsers, and the testimony on this question was in sharp conflict. Several parties who signed the note on the back were allowed, over the defendants' objection, to testify that they signed it in the capacity of makers; and that also each of the defendants signed it in the capacity of the maker.

In its oral charge to the jury, the court stated as follows:

(1) The law says that a maker of a note may sign the note on the back thereof, or anywhere else, and thereby become a joint maker of such note, without any words of explanation placed on the note, or attached thereto, to indicate the capacity in which he signs it. It is not necessary to fix liability on him as a maker that he should sign at the foot he may sign on the back and be liable as a maker.

(2) "The signing of a note on the back, while it raises a prima facie presumption that he is an indorser who signs his name there, is not conclusive that he signs as an indorser. This presumption may be overcome by the evidence."

The defendant requested numerous instructions which were refused but which sufficiently appear from the opinion.

Huey &amp Welch, of Bessemer, for appellants.

Pinkney Scott, of Bessemer, for appellee.

SOMERVILLE J.

At common law a "bill single" was an unconditional written promise to pay money, under the seal of the obligor. It was not negotiable, and, though identical in form with a promissory note, it was technically distinct, so that a complaint declaring on the one instrument was not supported by proof of the other. McCrummen v. Campbell, 82 Ala. 566, 2 So. 482; Davis v. McWhorter, 122 Ala. 570, 26 So. 119.

This has been changed, and this law of variance abrogated, by the Negotiable Instruments Law, which declares that--

"The validity and negotiable character of an instrument are not affected by the fact that *** it *** bears a seal." Code 1907, § 4963.

The mere addition of a scroll after the signatures on this note, there being no words of reference or adoption in the note itself, did not make it a sealed instrument. Lytle v. Bank of Dothan, 121 Ala. 215, 26 So. 6.

Its designation as a "bill single" in the complaint was therefore a misnomer, but wholly without legal significance, so far as this case is concerned. To hold that it still works a fatal variance between pleading and proof, in spite of the statutory change referred to, would be an absurd and intolerable technicality.

On a former appeal of this cause, we ruled that parol evidence was admissible to explain the character of the signatures placed on the back of the note, and to overcome their prima facie intendment as indorsements by showing that they were in fact intended as primary signatures to the note by comakers thereof. Long v. Gwin, 188 Ala. 196, 66 So. 88. In the opinion in that case there was no allusion to the provisions of the Negotiable Instruments Law, and it is now insisted that some of these, especially sections 5018, 4974 (subd. 6), and 5022, of the Code, forbid the use of parol evidence to show that a prima facie indorsement was intended as a primary signature to the note.

Section 5018 is:

"A person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity."

Section 4974, subd. 6, is:

"Where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser."

Section 5022 is:

"Where a person places his indorsement on an instrument negotiable by delivery he incurs all the liabilities of an indorser."

Prior to the...