Long v. Gwin

• Decision Date: 30 June 1914
• Docket Number: 601
• Parties: LONG v. GWIN.
• Court: Alabama Supreme Court

66 So. 88

188 Ala. 196

LONG v. GWIN.

No. 601

Supreme Court of Alabama

June 30, 1914

Appeal from City Court of Bessemer; James Trotter, Special Judge.

Action by M.M. Gwin against R.H. Long and others, upon a bill single or promissory note. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The seventh plea of defendant Long is as follows:

Plaintiff should not recover in this case against this defendant for that the instrument sued on was a negotiable instrument, and this defendant was, if liable at all, only liable as an indorser, and that said instrument was dishonored by nonpayment at maturity, and that notice of such dishonor was not given this defendant when said instrument was so dishonored, nor within the time required by law for such notice; therefore this defendant is discharged from liability on said instrument.

Estes Jones & Welch, of Bessemer, and William Milliken, of Birmingham, for appellants.

Pinkney Scott, of Bessemer, for appellee.

MAYFIELD J.

Appellee sued appellant and a number of others on a written instrument, in form a promissory note, but in the complaint denominated a "bill single." With this exception the complaint is in Code form, for an action by the payee against the several makers of a promissory note.

Several of the defendants, alleged makers, were not served, and as to these the plaintiff discontinued, as is authorized by section 2502 of the Code. As to this there was no error nor injury of which this appellant can complain. The other defendants served, than Long, failed to appear and defend, and judgment by default was entered against them; and the case proceeded to trial as against defendant Long. It appears that some of these defendants, against whom judgment by default was rendered, had not been properly served, but as to this there was no reversible error nor error of which Long could complain.

This error can be corrected in the trial court on motion, or in this court, without remanding the cause, if the judgment can be otherwise affirmed, at the cost of the appellant. Neff v. Edwards, 81 Ala. 246, 2 So. 88.

There was no discontinuance of this cause by the taking of judgment by default against those who did not appear, and proceeding to trial as against the others.

In such case the judgment by default is, in its nature interlocutory, to await disposition of the case as to the other defendants; and in this case it was made final when judgment was rendered against the other defendants. Brooks v. Maltbie, 4 Stew. & P. 96; Mobile Co v. Smith, 51 Ala. 329; Neff v. Edwards, supra.

The defendant Long interposed several pleas, including that of non est factum; and demurrer was sustained as to all except the plea of non est factum.

Plea 7 presented a good defense to the instrument; that is, if the facts alleged in the plea were true, the defendant Long was not liable, though he had signed the instrument sued on.

The action is by the payee against the makers of a note. The complaint did show that plaintiff was a bona fide purchaser or holder of the instrument. The complaint shows an action only between the original parties to the contract sued on and hence the defenses set up were availing to the defendant.

While the defendant is sued as a maker, the instrument on its face prima facie shows that the defendant is liable only as an indorser. Unless this prima facie presumption is rebutted, which may be done in this action, the plaintiff cannot recover.

The plaintiff in this action had the right to show that, although Long's name was signed on the back of the note, yet he was in fact liable as a maker, and signed the note as such and not as an indorser. On the other hand, the defendant had the right to show that he was not liable as maker, but liable, if at all, only as indorser.

It is made to appear in this case beyond dispute that defendant Long's signature to the note was on its back; and therefore he was prima facie indorser and not maker; yet it is also conclusively shown that he signed before the note was delivered, and that the note had never been indorsed by the payee; that he still holds it and sues on it as the original payee; and that Long signed the note at its inception to give it credit. The rule is thus stated in Randolph on Commercial Paper, vol. 2, §§ 833, 841:

"Sec. 833. In distinction from cases that hold such indorsement to be conclusively a joint making are those which hold it to be such presumptively. And this has been held to be the case prima facie, although the indorsement was expressly 'without demand and notice,' or 'responsible without demand or notice.' While such is the presumptive contract, parol evidence of a different intention is admissible between the immediate parties to the contract, but not against a bona fide holder of the note for value before maturity. And it has been held that his intention to contract as maker may be shown by parol in an action brought by him against the payee as a prior indorser although the payee indorsed first. On the other hand, it has been held that parol evidence is requisite in order to render such an indorser liable either as maker or guarantor. And to hold him as maker, not only such an intention must be proved, but also the fact that his indorsement was at the inception of the note, and that he was privy to the original consideration. But an averment that he indorsed the note before its delivery to induce the payee to take it is sufficient, although, if such averment had been denied by the plea, he might have been shown to be a guarantor. According to his intention, he has been held to be a maker or surety, a maker or indorser, a maker or guarantor, a maker, guarantor, or

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