Moore v. First Nat. Bank
Citation | 36 So. 777,139 Ala. 595 |
Parties | MOORE v. FIRST NAT. BANK OF FLORENCE. |
Decision Date | 11 February 1904 |
Court | Supreme Court of Alabama |
Appeal from Circuit Court, Lauderdale County; Ed. B. Almon, Judge.
Action by the First National Bank of Florence against Samuel E Moore. From a judgment for plaintiff, defendant appeals. Affirmed.
This suit was brought by the appellee, the First National Bank of Florence, against the appellant, Samuel E. Moore, and was instituted on October 18, 1898. The complaint as originally filed contained two counts. The first count claimed the sum of $4,000 due by a count stated on, to wit, November 1, 1893. The second count claimed the like sum under an agreement entered into between the plaintiff and defendant and one H C. Nichols on or about the 6th day of March, 1893, by which plaintiff undertook and agreed to procure for defendant the contract for the building of the Cherry Cotton Mills building in Florence, and Nichols agreed to confess judgment in favor of the defendant in the circuit court of Lauderdale county Ala., for the sum of $16,604.50, and in consideration of the procurement of the said contract to build the said mills, and the confession of the said judgment by Nichols in favor of defendant, the defendant agreed and undertook to pay plaintiff the sum of $4,000, in which sum Nichols was indebted to plaintiff. The count then avers that plaintiff did procure for defendant the contract for said mill, that Nichols did confess judgment as aforesaid, and that said sum of money became due on the 1st November, 1893. Subsequently on the 11th of March, 1899, the plaintiff filed two amended counts to his declaration, numbered respectively 3 and 4. At the trial of the cause at the September term, 1899, of the said circuit court, and after the evidence had closed, and before the argument had commenced, the plaintiff announced that it withdrew all counts but the fourth, on which it relied. In the fourth count the averments of facts showing plaintiff's claim were as follows: That prior to the 21st February, 1893, one H. C. Nichols had a contract to build at Florence a cotton mill, and during the construction of this mill became indebted to the bank in the sum of $4,000, which was used in the purchase of material and the payment of labor; that, prior to the date mentioned, work on the mill had been suspended or abandoned, and that at the time the said Nichols had on hand a large amount of material, the larger part of which had been purchased with the money loaned by the bank; that, on or about the date mentioned, Nichols made an arrangement to build the Cherry Cotton Mills, having agreed upon the terms of a contract, The complaint then avers that defendant, under his said agreement and undertakings, became liable to pay the sum of $4,000 to plaintiff, and that the same was due on the 1st November, 1893, when said contract of defendant with said Cherry Cotton Mills was completed, and defendant, though often requested, has failed to pay the same, etc. The defendant demurred to the third and fourth counts, upon the ground that the cause of action averred therein was a departure from the cause of action contained in the original complaint. This demurrer was overruled. Defendant also moved to strike from the file the third and fourth counts of the complaint, because they constitute a departure from the cause of action on which the original complaint was based. This motion was overruled, and the defendant duly excepted. The defendant filed the plea of the general issue, and several special pleas setting up the statute of limitations of three and six years, and a want of consideration for the promise or agreement alleged in the complaint, and that said agreement or contract as alleged in the complaint was an agreement to answer for the debt, default, and miscarriage of another, and was without consideration, and was not reduced to writing, and was void under the statute of frauds. The plaintiff moved the court to strike pleas numbered 1, 2, and 7 from the file, upon the ground that they presented no defense to the action. These pleas set up the statute of limitations of three years. This motion was sustained, the said pleas were stricken, and the defendant duly excepted. The facts of the case and the rulings of the court upon the evidence, which are reviewed on the present appeal, are sufficiently shown in the opinion.
The defendant separately excepted to the following separate and several portions of the court's general charge to the jury:
The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: ...
To continue reading
Request your trial-
Russell v. Russell
...for a mortgage.' Some of our cases so holding are Hartford Fire Ins. Co. v. Clark, 258 Ala. 141, 61 So.2d 19; Moore v. First National Bank, 139 Ala. 595, 36 So. 777; Starr Piano Co. v. Baker, 8 Ala.App. 449, 62 So. 549. Cases from other jurisdictions specifically holding that the granting o......
-
Mutual Ben. Health & Acc. Ass'n of Omaha v. Bullard
...therefor, may maintain an action on the contract against the promisor. Mason v. Hall, 30 Ala. 599; Moore v. First National Bank of Florence, 139 Ala. 595, 36 So. 777; Fite v. Pearson, 215 Ala. 521, 111 So. 15; Meyerson v. New Idea Hosiery Company, 217 Ala. 153, 115 So. 94, 55 A.L.R. 1231; E......
-
Franklin Fire Ins. Co. v. Howard
...... Merchants Bank of Hurtsboro, and others. From a decree. overruling a demurrer to the ...Co. v. Martin, 223 Ala. 104. 134 So. 850;. American-Traders' Nat. Bank v. Henderson, 222. Ala. 426, 133 So. 36; Section 6825, Code 1923; ... Pearson, 215 Ala. 521, 111 So. 15; Mason v. Hall, 30 Ala. 599; Moore v. First National. Bank, 139 Ala. 595, 36 So. 777. And such is the. ......
-
City of Birmingham v. Andrews, 6 Div. 58
...... exceptions. . . The. first assignment of error is grounded upon the action of the. trial court in ...Wadsworth v. Williams, 101 Ala. 264, 13 So. 755; Moore v. First. National Bank, 139 Ala. 595, 36 So. 777. . . ......