Moragne v. Richmond Locomotive & Machine Works

• Decision Date: 16 January 1900
• Citation: 124 Ala. 537,27 So. 240
• Court: Alabama Supreme Court
• Parties: MORAGNE ET AL. v. RICHMOND LOCOMOTIVE & MACHINE WORKS.

27 So. 240

124 Ala. 537

MORAGNE ET AL. v. RICHMOND LOCOMOTIVE & MACHINE WORKS.

Supreme Court of Alabama

January 16, 1900

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by the Richmond Locomotive & Machine Works against J. M Moragne and others on a note. From judgment for plaintiff defendants appeal. Reversed.

The appeal in this case is prosecuted from a judgment rendered by the judge of the city court of Gadsden sustaining demurrers of plaintiff to certain pleas filed by the defendants. The action was brought by the appellee, the Richmond Locomotive &amp Machine Works, against J. M. Moragne, W. B. Beeson, and G. W Whorton, and counted upon a promissory note alleged to have been executed by the defendants on August 5, 1890, made payable to the plaintiff. To this complaint the defendants filed six pleas, to all of which demurrers were sustained. The defendants then filed a seventh plea, which was as follows: "(7) Defendants say they were the board of business managers of the Etowah Alliance Manufacturing Company, a corporation under the laws of Alabama; that the purchase of the machinery, the consideration of the instruments sued on, was made by said corporation, said corporation having full power under its charter to purchase said machinery, it being necessary to enjoy its rights granted by its charter, and to execute its notes for the payment thereof; that the notes sued on were executed by the defendants as board of business managers of said corporation and not otherwise; that, as such board of business managers they had authority from said corporation to buy said machinery and execute said notes for the same; that plaintiff dealt with them as a corporation; and that the debt now sued on was contracted by said Etowah Alliance Manufacturing Company as such corporation, and not otherwise, and that plaintiff knew that said corporation bought this machinery itself; hence defendants say they are not liable for said debt." The plaintiff demurred to this plea, upon the grounds, among others, that it does not show the manner in which the note sued on was executed, and does not show that the note was not executed by the defendants in such manner as to bind the defendants personally. These demurrers were overruled, and the cause was then tried on its merits by the court, without the intervention of a jury, and judgment was rendered in favor of the defendants. From this judgment the plaintiff appealed to this court, and upon this appeal the judgment in favor of the defendants was reversed, and the cause remanded. After the remandment of the cause, the defendants amended their seventh plea by adding thereto the averments which are copied in the opinion. The defendants also filed the following additional special pleas: "(8) That since the execution of the instrument sued on there has been a novation of the same, in this: that plaintiff and defendants agreed among and between themselves that the plaintiff would release and discharge the defendants from their liability on said obligation, and take the Etowah Alliance Manufacturing Company therefor, and to said agreement the said Etowah Alliance Manufacturing Company was a party and consented thereto, and that the consideration for their so consenting and agreeing thereto was the fact that said Etowah Alliance Manufacturing Company received and used said machinery and got the benefit thereof. (9) That since the execution of the instrument sued on there has been a novation of the same, in this: that plaintiff and defendants agreed among and between themselves that the plaintiff would release and discharge the defendants from their liability on said obligations, and take William Myrick therefor, and to said agreement the said William Myrick was a party and consented thereto, and that the consideration for said William Myrick so consenting and agreeing thereto was the fact that said William Myrick received and used said machinery and got the benefit thereof. (10) Defendants, further answering said complaint, say that the consideration of the instrument sued on was the sale and delivery of one 11x16 side crank engine, and 40 H. P. return tubular boiler, with fitting complete, and that said consideration thereof has failed, in that plaintiff never did deliver to defendants the said machinery, but shipped and delivered it to the Etowah Alliance Manufacturing Company, a corporation separate and distinct from these defendants, after the execution and delivery of the notes sued on to plaintiff, wherefore these defendants say plaintiff cannot recover in this action." To the seventh plea, as amended, the plaintiff demurred upon several grounds, which were substantially as follows: (1) Said plea does not show that said notes are not executed by the defendants in such a manner as to bind them personally. (2) Said plea fails to show that said notes show on their face that defendants did not execute them in such a manner as to bind them personally. (3) Said plea fails to show that the defendants executed said notes in such a manner as to bind the Etowah Alliance Manufacturing Company. (4) Said plea fails to show that the name of the Etowah Alliance Manufacturing Company anywhere appears on the case of said notes. (5) Said plea fails to show that anything appears on the face of said notes that would show that they are the notes of the Etowah Alliance Manufacturing Company. (6) Said plea does not allege that said notes purport on their face to be the notes of the Etowah Alliance Manufacturing Company. To the eighth and ninth pleas ...