Orman v. Scharnagel, 8 Div. 564.

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation210 Ala. 381,98 So. 123
Docket Number8 Div. 564.
Decision Date18 October 1923

Rehearing Denied Dec. 6, 1923.

Appeal from Circuit Court, Franklin County; Chas. P. Almon, Judge.

Action by Mrs. Linnie Scharnagel against J. E. Orman and W. A Orman. Judgment for plaintiff, and defendants appeal. Affirmed.

W. L Chenault and Travis Williams, of Russellville, for appellants.

B. H Sargent and William Stell, both of Russellville, for appellee.


There was no motion for a new trial presenting for review the sufficiency of the evidence, and the scintilla rule obtains. Howell v. Howell, 98 So. 630; Patterson v. A. C. L. R. R. Co., 202 Ala. 583, 81 So. 85; Penticost v. Massey, 202 Ala. 681, 81 So. 637; Id. 206 Ala. 411, 90 So. 866.

There being evidence from which a reasonable inference may be drawn adverse to defendants, the affirmative charges requested by them were properly refused. McMillan v. Aiken, 205 Ala. 35, 88 So. 135.

It is unnecessary that there be a consideration passing to the surety in the contract, if there is a valid and lawful consideration between the principal and the payee therein. Such consideration is sufficient to bind the surety joining in the execution of such contract. Christie v. Durden, 205 Ala. 571, 88 So. 667.

If the note sued on was executed under an agreement of the parties thereto to suppress pending prosecutions against one of the makers of the note, it was void for want of a consideration, as forbidden by public policy. Moog v. Strang, 69 Ala. 98. The like rule obtains where there is a "partial illegality" of the consideration. Armstrong v. Walker, 200 Ala. 364, 76 So. 280; People's Bank & Trust Co. v. Floyd, 200 Ala. 192, 75 So. 940; U.S. Fidelity & Guar. Co. v. Charles, 131 Ala. 658, 31 So. 558, 57 L. R. A. 212; Wadsworth v. Dunnam, 117 Ala. 661, 670, 23 So. 699; Carrington v. Caller, 2 Stew. 175; Wynne v. Whisenant, 37 Ala. 46; Pettit's Adm'r v. Pettit's Distributees, 32 Ala. 288.

If, however, the note was for the purpose of securing a debt due by W. A. Orman (one of the makers appellant) to the payee, it would be valid and binding as to each of the makers of the note. And the evidence authorized the submission to the jury of the issues of mutuality and of sufficiency of the consideration.

The defense was that the whole consideration of the note was the suppression of the pending prosecutions. There was no error in refusing charge No. 3 seeking to instruct as to a part of the consideration being illegal. The court, in its oral charge, fully and fairly submitted to the jury the lack of consideration of the note-that it was for the compounding of a felony.

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19 cases
  • Arrick v. Fanning, 8 Div. 888
    • United States
    • Alabama Court of Appeals
    • August 8, 1950
    ...by a motion for a new trial. To illustrate: 'The verdict of the jury is contrary to the great weight of the evidence.' Orman et al. v. Scharnagel, 210 Ala. 381, 98 So. 123; Aldridge v. Seaborn, Ala.Sup. 46 So.2d 424. 'The amount of damages awarded the appellee was excessive.' Central of Geo......
  • Porter v. Alabama Farm Bureau Mut. Cas. Ins. Co., 6 Div. 14
    • United States
    • Supreme Court of Alabama
    • May 5, 1966
    ...on a jury verdict, 'In the absence of a motion for a new trial this Court will not pass on the weight of the evidence. Orman v. Scharnagel, 210 Ala. 381, 98 So. 123. . . ..' Aldridge v. Seaborn, 253 Ala. 603, 46 So.2d 424. It is apparent, however, that such a motion for new trial is necessa......
  • Alabama Power Co. v. Gladden, 7 Div. 522.
    • United States
    • Alabama Court of Appeals
    • June 29, 1940
    ...a reasonable inference may be drawn adverse to a party, the affirmative charges requested by him are properly refused. Orman v. Scharnagel, 210 Ala. 381, 98 So. 123; Commonwealth Life Ins. Co. v. Clark, 25 588, 151 So. 604; Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411. It must be sa......
  • Louisville & N.R. Co. v. Steverson, 6 Div. 153.
    • United States
    • Supreme Court of Alabama
    • June 20, 1929
    ...... affirmative charge. Orman v. Scharnagle, 210 Ala. 381, 98 So. 123; Norwood Hospital v. Brown (Ala. ... Kendall & Co., 14 Ala. App. 242, 69 So. 328. . . Charge. 8 asserts a sound proposition of law, and its refusal was. error. Carter v. ......
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