Nobles v. Bank of Eclectic

• Decision Date: 25 November 1927
• Docket Number: 5 Div. 939
• Citation: 115 So. 13,217 Ala. 124
• Parties: NOBLES v. BANK OF ECLECTIC.
• Court: Alabama Supreme Court

115 So. 13

217 Ala. 124

NOBLES v. BANK OF ECLECTIC.

5 Div. 939

Supreme Court of Alabama

November 25, 1927

Rehearing Denied Jan. 12, 1928

Appeal from Circuit Court, Elmore County; George F. Smoot, Judge.

Action on promissory note by the Bank of Eclectic against A.S Nobles and another. Judgment for named defendant, and from an order granting a motion for a new trial, he appeals. Affirmed.

Huddleston & Glover, of Wetumpka, for appellant.

Holley & Milner, of Wetumpka, for appellee.

BROWN J.

The appeal here is by the defendant from the order of the trial court granting plaintiff a new trial. The suit as originally commenced was one by the payee of a promissory note against the maker and an indorser. After demurrer sustained to the complaint, it was amended by striking the name of the maker as a party defendant, and the case proceeded to judgment in favor of the other defendant.

The several defenses presented by the defendant under the general issue, pleaded in short by consent with leave, were payment no consideration, illegal consideration, and novation, and on some of these issues the evidence was in sharp conflict, and some of the material questions rest in inferences to be drawn by the jury.

The evidence offered, so far as now material, to state its general effect, was that through taking over the assets of the Bank of Elmore, which was then in a failing condition and of which the maker of the note in suit was president, the plaintiff bank acquired certain claims arising from overdrafts made through the Bank of Elmore. Soon after the plaintiff acquired these claims, prosecutions were instituted against Holloway, the maker of the note, for felonies alleged to have been committed by him in connection with conducting the business of said Bank of Elmore. These prosecutions were instituted through the activities of some of the plaintiff's officers or agents, and it was represented on the preliminary trial thereof by its counsel. After these prosecutions had culminated in several indictments against Holloway in the circuit court of Elmore county, notes were given by Holloway in adjustment of some of the claims, above referred to, and according to Holloway, who testified as a witness for the defendant, the consideration in part was that these prosecutions were to be suppressed.

The evidence offered by the plaintiff was to the contrary.

The note in suit was subsequently executed in lieu of one of the original notes, or in renewal thereof, and indorsed by the appellant, who waived "notice of demand, protest, and nonpayment."

On June 21, 1923, Holloway, the maker of the note, executed and delivered to the plaintiff his note covering the indebtedness represented by the note in suit, payable October 8, 1923, which, on its face, states "renewal of note of $1,080 dated October 8, 1921," and at the same time paid to the plaintiff $540 to be applied to another note indorsed by defendant, and the interest on the indebtedness represented by the note in suit until the due date of the new note. The note in suit was not delivered to Holloway, but the defendant offered evidence tending to show that the note in suit was not carried forward in the bills receivable account as an obligation due to the plaintiff, but as representing this indebtedness the new note given by Holloway on June 21, 1923, only, was carried forward on this account. So far as appears, no demand was made on the defendant, the indorser, until after Holloway made default in his obligations, as evidenced by the note of June 21, 1923, when the president of plaintiff bank, in a conversation with Nobles at his (Nobles') home, made demand on him for payment, and Nobles then stated that he understood he had been relieved of liability by plaintiff taking Holloway's personal note.

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