Mallory v. Dairy Products Co.

• Decision Date: 04 April 1933
• Docket Number: 7 Div. 984.
• Citation: 25 Ala.App. 442,148 So. 864
• Parties: MALLORY et al. v. DAIRY PRODUCTS CO.
• Court: Alabama Court of Appeals

148 So. 864

25 Ala.App. 442

MALLORY et al. v. DAIRY PRODUCTS CO.

7 Div. 984.

Court of Appeals of Alabama

April 4, 1933

Rehearing Denied May 9, 1933.

Appeal from Circuit Court, Calhoun County; R. B. Carr, Judge.

Action on promissory notes by the Dairy Products Company against J W. Mallory and Ben R. Sawyer. From a judgment granting plaintiff's motion for a new trial, defendants appeal.

Affirmed.

Certiorari denied by Supreme Court in Mallory v. Dairy Products Co., 148 So. 866.

Young &amp Longshore, of Anniston, for appellants.

H. H Evans, of Anniston, for appellee.

SAMFORD, Judge.

The suit is based upon seven promissory notes on which plaintiff seeks to hold defendants as indorsers. Two of the notes were indorsed under a printed waiver on the back of the note which in effect binds the indorsers as principals. As to these two notes there can be no question of plaintiffs' right to recover and as to these notes we need not consider them further, except as they may be affected by rulings regarding the other five notes around which all of the insistences of error center.

The five notes above alluded to, except as to due dates are as follows:

"$100.00 Atlanta, Ga., October 15, 1930.

"February 15, 1931. We promise to pay to the order of The Dairy Products Company, Atlanta, Georgia, One Hundred and 00/100 Dollars. At the office of Anniston National Bank, Anniston, Alabama. For value received with interest after maturity until paid at eight per cent. Per annum, with all costs of collection, including ten per cent., as Attorney's fees, if collected by law or through an attorney at law. Each of us, whether principal, security, guarantor, endorser, or other party hereto, hereby severally waives and renounces each for himself and family, and any all homestead or exemptions rights. Either of us or the family of either of us, may have under or by virtue the constitution or laws of Georgia, or any other State or the United States, as against this debt or any renewal thereof; and also we, jointly and severally, transfer assign and convey to the owner of this note a sufficient amount of my or our homestead and exemption to pay this note in full, principal and interest, attorney's fees and costs, and I or we hereby request and direct the Trustee to deliver to the owner of this note a sufficient amount of property or money claimed as exempt to pay off the amount so allowed on this debt; and each further waives demand, protest and notice of demand, protest and non-payment. Given under the hand and seal of each party.

"The Dixie Ice Cream Company [Seal.]

"Per J. W. Mallory, Pt.

"(Stamped in red)

"(Written on back of note) Pay any Bank or Banker

"(Signed in ink) All prior Endorsements Guaranteed

J. W. Mallory Benj. R. The Citizens & Southern National Bank. Feb. 9,

Sawyer. 1931

"(Written in pencil)

"No attention. Atlanta, Georgia E. T. Johnson, Cashier

Report by No. 5894 (Stamped across above)

Endorsement Erased."

The plaintiff offered these five notes in evidence in support of the various counts of the complaint to which they were applicable. Defendants objected on several grounds, the objections were sustained and the cause was submitted and judgment rendered for plaintiff on the two notes bearing specific indorsement. Motion was made by plaintiff for a new trial on the specific grounds that the court erred in sustaining defendants' objections to the five notes indorsed in blank. The court granted the motion, setting out his reasons therefor in the following opinion:

"The Dairy Products Co. v. Dixie Ice Cream Co., et al.

"In the Circuit Court of Calhoun County, Alabama.

"Suit was filed by the Dairy Products Company against the Dixie Ice Cream Company, J. W. Mallory and Ben R. Sawyer, claiming on seven promissory notes of $100.00 each. The Dixie Ice Cream Company, by J. W. Mallory as President, signed as principal on each of said notes, and the defendants J. W. Mallory and Ben R. Sawyer signed as endorsers. Two of the notes, over the signatures of the endorsers, contained, among other stipulations, the following: 'For value received, each endorser of this note, without being released from any liability as endorser hereon, hereby guarantees the payment hereof at maturity and waives demand, notice, protest, presentment, notice of non-payment, etc.' The other five notes contain no such condition on the back of said notes. In fact, the said five notes were endorsed in blank. The said five notes contain in the body of the instrument, among other stipulations, the following, 'Each of us, whether principal, surety, guarantor, endorser or other party hereto * * * each further waives demand, protest and notice of demand, protest of nonpayment.'

"On the trial of the case the court gave the affirmative charge in favor of the plaintiff on the two notes containing a waiver on the back and gave the affirmative charge in favor of the defendants, Mallory and Ben R. Sawyer, as to the five notes upon the back of which there was no waiver.

"The questions here presented are: In the absence of any evidence or notice of presentment, protest and dishonor on the part of the endorsers, are they liable on these notes?

"The notes were made payable at the Anniston National Bank, Anniston, Alabama, and were delivered to said bank for collection. Formal notice was sent by the bank to the Dixie Ice Cream Company of the due date of each note a few days before it was due. The notes were not paid and were not formally protested.

"'Presentment for payment is made at the proper place: (1) Where a place of payment is specified in the instrument and it is there presented.' Code, § 9099. Calkins

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