McAfee v. Glen Mary Coal & Coke Co.

• Decision Date: 03 January 1893
• Citation: 97 Ala. 709,11 So. 881
• Court: Alabama Supreme Court
• Parties: MCAFEE v. GLEN MARY COAL & COKE CO.

11 So. 881

97 Ala. 709

MCAFEE v. GLEN MARY COAL & COKE CO.

Supreme Court of Alabama

January 3, 1893

Appeal from city court of Anniston; B. F. CASSADY, Judge.

Action by the Glen Mary Coal & Coke Company against W. W. McAfee on a promissory note. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff demurred to the second of these pleas on the grounds: First, that it was not necessary that there should have been any consideration to this defendant in order that he should be held liable on the note sued on in this action; second, that said plea does not sufficiently state the facts relied on as a defense to the cause of action, so that the plaintiff can be informed of the defense intended to be made upon said plea; and to the third plea the plaintiff demurred on the grounds that there was no sufficient statement of the facts relied on as constituting the defense, and that the facts are not so stated that a material issue can be taken thereon. The court sustained these demurrers to the second and third pleas of the defendant, and the defendant duly excepted. The court, on the submission of the cause, rendered judgment for the plaintiff. The defendant now brings this appeal, and assigns as error the rulings of the court in sustaining the plaintiff's demurrer to the defendant's second and third pleas.

Knox & Bowie and John Pelham, for appellant.

Blackwell & Keith, for appellee.

MCCLELLAN J.

Action on promissory note alleged to have been executed by W. W McAfee, the defendant, and D. W. and D. M. Rodgers, who are not sued. The pleas were (1) that defendant "never promised or undertook in the manner and form alleged;" (2) "that there was no consideration to defendant for the note or obligation which is the foundation of this suit;" and (3) "that there is a failure of consideration in the note or obligation the foundation of this suit." The action of the trial court in sustaining demurrers to the second and third pleas is assigned as error. The second plea was manifestly bad, in that it fails to negative consideration moving to defendant's comakers of the note, which, of course, would support his obligation though he personally received nothing; and both the second and third pleas were bad in that they are not interposed "in short by consent," and state mere conclusions of law, and not the facts relied on by the defendant in defense of the action. Carmelich v. Mims, 88 Ala 335, 6...