McGeever v. Terre Haute Brewing Co., 6 Div. 651.

CourtSupreme Court of Alabama
Writing for the CourtMcCLELLAN, J. McCLELLAN, J.
Citation201 Ala. 290,78 So. 66
Docket Number6 Div. 651.
Decision Date17 January 1918
PartiesMcGEEVER et al. v. TERRE HAUTE BREWING CO.

78 So. 66

201 Ala. 290

McGEEVER et al.
v.
TERRE HAUTE BREWING CO.

6 Div. 651.

Supreme Court of Alabama

January 17, 1918


On Rehearing, February 16, 1918

On the Merits.

Appeal from Circuit Court, Jefferson County; H.A. Sharpe, Judge.

Action by the Terre Haute Brewing Company against Hugh McGeever and others on a guaranty bond. Judgment for plaintiff, and defendants appeal. Reversed and remanded. [78 So. 67]

Tillman, Bradley & Morrow, Richard H. Fries, William B. White, and J.D. Rucker, all of Birmingham, for appellants.

Sterling A. Wood, of Birmingham, for appellee.

On Motion.

McCLELLAN, J.

The submission includes a motion by appellee to strike all assignments referable alone to the erstwhile judgment rendered by the circuit court of Jefferson in this cause on February 14, 1916, which judgment preceded the former appeal and decision of reversal made in this cause as reported in 73 So. 889. The second, present, appeal is from the judgment rendered, after previous reversal, by the court on May 15, 1917, and in this judgment entry no ruling is recited as having been made in the circuit court with respect to the subject-matter of the assignments of error to be enumerated. The motion is well taken under the apt authority of Ala. City Ry. Co. v. Bates, 155 Ala. 347, 46 So. 776; Sellers v. Dickert, 194 Ala. 661, 69 So. 604. The effect of the motion to strike assignments of error is to eliminate the assignments numbered 1, 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, and 17. The motion is sustained, and the indicated assignments are therefore stricken.

On the Merits.

The appellee, an Indiana corporation, brought this suit against the appellants as sureties on a bond of guaranty. The instrument declared on purports to have been executed by the appellants and to guarantee the performance of a certain contract between Abe Siegel and the brewing company for the purchase in Indiana of beer by Siegel. A more ample statement of the case may be found in 73 So. 889. The complaint contained amended count 1, whereby the legal effect of the contract was undertaken to be averred, concluding with allegations of breach; and count 2, wherein is set out the bond and the contract, the performance of which the bond purported to guarantee, together with allegations of breach. The defenses were constituted of issues tendered by the general traverse of the complaint, and plea 1, which, as amended, reads:

"For answer to the complaint and to each count thereof defendants say that the bond on which the action was founded was not executed by them, nor either of them, nor by any one authorized by them, or either one of them in the premises."

Aside from the above-enumerated assignments of error which the motion eliminates, those remaining are predicated of rulings on pleas, of excerpts from the oral charge of the court, of the action in giving and refusing, respectively, special request for instructions, and of the overruling of the motion for new trial. The fifth assignment complains of the action of the court in sustaining demurrer to "plea 8," noted as being at transcript pages 21, 22. In the judgment of May 15, 1917, there is recited such a ruling as to "plea 8." On pages 21, 22, of the transcript there is a pleading designated "plea A" opposite its caption; but opposite the title, "Plea and Answer to the Complaint," this appears in dim typewriting: "#8." In the judgment entry of May 15, 1917, preceding the stated ruling on "plea 8," it is recited that plea A was "withdrawn." This recital undoubtedly referred to "plea A" above mentioned. That is the only "plea A" we can discover in the record. The dim characters, "#8" cannot be accepted as designating "plea A" as plea 8. So there is no "plea 8" in the transcript to which the fifth assignment can be referred. The appellee's brief, at page 12, correctly notes the absence of any "plea 8" in the transcript.

The report of the appeal will contain pleas 9, 10 as amended, and 11. There is argument in the brief for appellant based upon a ruling sustaining demurrer to plea 10 (before its amendment); but there is no assignment of error presenting for review that claim of error.

Plea 9 was subject to the demurrer. In general theory it sought to bar a recovery on the bond on the ground that the contract, the performance of which the bond assured, was abrogated by the principals as the necessary consequence from particular acts averred, without the knowledge and consent of the sureties, the defendants or any of them. It is to be observed that the plea [78 So. 68] does not charge, unqualifiedly, the abrogation of the contract by the principals. It would invoke the legal deduction of abrogation of the contract, by the principals thereto, from the particular facts recited in the plea. These facts the pleader characterizes as a conspiracy to violate the then existing prohibition laws of the state of Alabama. The fifth, sixth, and seventh grounds of the demurrer were due to be sustained under the authority afforded by the doctrine of the opinion...

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11 practice notes
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • May 26, 1927
    ...therefrom. Sellers v. Dickert, 194 Ala. 661, 69 So. 604; Ala., etc., Co. v. Bates, 155 Ala. 347, 46 So. 776; McGeever v. Terre Haute Co., 201 Ala. 290, 78 So. 66. This is the general rule in the premises. 1 A.L.R. 725. It was applied in Ala., etc., Co. v. Bates, supra, as follows: " 'The ge......
  • Cartwright v. Hughes, 8 Div. 415.
    • United States
    • Supreme Court of Alabama
    • March 9, 1933
    ...review rulings which occurred after remandment. Ala. Power Co. v. Davidson, 206 Ala. 501, 90 So. 915; McGeever v. Terre Haute Brewing Co., 201 Ala. 290, 78 So. 66; 4 Corpus Juris, 1097, § 3077. All such statements are apparently consistent. It is not essential to it that the ruling might ha......
  • Bon Harbor Llc v. Bank, 1090302.
    • United States
    • Supreme Court of Alabama
    • June 30, 2010
    ...So. 711 (1922), quoting Manatee County State Bank v. Weatherly, 144 Ala. 655, 39 So. 988 (1905).”); McGeever v. Terre Haute Brewing Co., 201 Ala. 290, 292, 78 So. 66, 68 (1918) (“It is settled in this jurisdiction that the contract of a guarantor must be strictly construed, according to the......
  • Ross v. Imperial Const. Co., Inc., No. 76-3206
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 5, 1978
    ...Indeed, the face of the Guaranty Agreement, which concededly must be strictly construed, see McGeever v. Terre Haute Brewing Co., 201 Ala. 290, 78 So. 66 (1918), shows that Imperial Group guaranteed only the note. Although we find some merit in appellants' position, our disposition of the a......
  • Request a trial to view additional results
11 cases
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • May 26, 1927
    ...therefrom. Sellers v. Dickert, 194 Ala. 661, 69 So. 604; Ala., etc., Co. v. Bates, 155 Ala. 347, 46 So. 776; McGeever v. Terre Haute Co., 201 Ala. 290, 78 So. 66. This is the general rule in the premises. 1 A.L.R. 725. It was applied in Ala., etc., Co. v. Bates, supra, as follows: " 'The ge......
  • Cartwright v. Hughes, 8 Div. 415.
    • United States
    • Supreme Court of Alabama
    • March 9, 1933
    ...review rulings which occurred after remandment. Ala. Power Co. v. Davidson, 206 Ala. 501, 90 So. 915; McGeever v. Terre Haute Brewing Co., 201 Ala. 290, 78 So. 66; 4 Corpus Juris, 1097, § 3077. All such statements are apparently consistent. It is not essential to it that the ruling might ha......
  • Bon Harbor Llc v. Bank, 1090302.
    • United States
    • Supreme Court of Alabama
    • June 30, 2010
    ...So. 711 (1922), quoting Manatee County State Bank v. Weatherly, 144 Ala. 655, 39 So. 988 (1905).”); McGeever v. Terre Haute Brewing Co., 201 Ala. 290, 292, 78 So. 66, 68 (1918) (“It is settled in this jurisdiction that the contract of a guarantor must be strictly construed, according to the......
  • Ross v. Imperial Const. Co., Inc., No. 76-3206
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 5, 1978
    ...Indeed, the face of the Guaranty Agreement, which concededly must be strictly construed, see McGeever v. Terre Haute Brewing Co., 201 Ala. 290, 78 So. 66 (1918), shows that Imperial Group guaranteed only the note. Although we find some merit in appellants' position, our disposition of the a......
  • Request a trial to view additional results

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