Parker v. Bond

• Decision Date: 18 May 1899
• Citation: 25 So. 898,121 Ala. 529
• Parties: PARKER v. BOND.
• Court: Alabama Supreme Court

25 So. 898

121 Ala. 529

PARKER v. BOND.

Supreme Court of Alabama

May 18, 1899

Appeal from circuit court, Hale county; John Moore, Judge.

Action by John Alley Parker against William Bond on a note. There was a judgment for defendant, and plaintiff appeals. Affirmed.

The defendant filed five pleas. The substance of the first second, and fifth pleas is sufficiently stated in the opinion. The third was the plea of the general issue, and the fourth plea set up that the note sued on was without consideration. To each of the first, second, and fifth pleas the plaintiff separately demurred upon the following grounds (1) Said pleas fail to aver that Edwards was the agent of the plaintiff at the time of the execution of the note sued on. (2) Said pleas show upon their face that said note was given in consideration of a life insurance policy to be issued on the life of the defendant, and that said insurance policy was issued and accepted by the defendant. (3) Said pleas fail to aver the facts constituting the alleged deception and misrepresentation. (4) They do not show in what respects the policy issued to the defendant differs from the policy agreed to be issued him. (5) They fail to aver or show that Edwards had authority to receive said policy back from the defendant or return the defendant's note to him. (6) Said pleas fail to aver that said agreement and provision as to said policy alleged to have been entered into by the defendant and Edwards before the execution of said note was not in writing or incorporated in said note. (7) Because said pleas show upon their face that said note was given for a valuable consideration, and they fail to aver the facts which could relieve the defendant of the obligation to pay said note. (8) Said pleas show that the note sued on was made payable to the plaintiff at the time of its execution, and that it contains no allegation of any waiver of the plaintiff's right to enforce the collection of said note according to its terms and of no provision or agreement made by the plaintiff or any one authorized to bind him in the premises, whereby the defendant was relieved of liability on said note. (9) Because said pleas fail to aver that the plaintiff knew of or sanctioned the agreement alleged to have been made by said Edwards with the defendant, in order to induce the defendant to execute said note. (10) Because said pleas fail to show that Edwards had any interest in the note sued on. To the second and fifth pleas the plaintiff demurred upon the following additional grounds: (1) Said pleas do not show when the defendant read and examined said policy, and when he offered to return the same and demand his note, and how long he retained the policy in his possession before offering to return the same. (2) Said pleas fail to aver that said defendant offered to surrender and cancel the policy of insurance delivered to him under said alleged agreement at the time of making the demand for the return of the note. (3) Said pleas fail to show wherein said defendant was not satisfied with the terms and conditions of the policy delivered to him. (4) Because the agreement set up in said plea as to the kind of policy the defendant was to receive in consideration of said note is void for uncertainty and indefiniteness. To the fifth plea the plaintiff demurred upon the following additional grounds: (1) Said plea fails to aver any facts constituting fraud or deception on the part of Edwards. (2) Because the plea shows that the defendant, at the time he executed the note, had the means at hand to discover the fraud that he alleged was perpetrated upon him. (3) Because in said plea the defendant failed to aver that upon discovering the fact that he executed the note to the plaintiff for the life insurance policy, he repudiated the transaction, and then and there offered to surrender the policy. The demurrers to plea No. 1 were sustained, and the demurrers to the second and fifth pleas were overruled. Thereupon the plaintiff filed a replication to plea numbered 2 and plea numbered 5, in which he averred as follows: "That defendant, after the policy of insurance had been delivered to him, he, the defendant, with full knowledge of all the facts, ratified the contract now sued on." The trial was had upon issue joined upon pleas numbered 2, 3, 4, and 5, and upon the plaintiff's replication. The plaintiff proved the execution of the note sued on, and introduced the same in evidence. The testimony of the defendant as a witness in his own behalf tended to prove the facts averred in the respective pleas. He also testified that within two or three days after receiving the policy he wrote to Edwards, and told him that it was not satisfactory to him, and he offered to return it. The policy, which included the application made by the defendant, was introduced in evidence. The plaintiff testified, in response to several questions asked him, to the fact of Edwards telling him that if, after receiving the policy, he was not satisfied with it, he could return the policy, and he (Edwards) would return to the defendant his said note. To the questions invoking this testimony, and to the answers of said witness to such questions, the plaintiff separately objected, upon the ground that the note was the evidence of the contract sued on, and such answers were irrelevant, impertinent, and inadmissible. All of these objections were severally overruled, and the defendant separately excepted to each of such rulings of the court. The defendant as a witness was asked the following question: "At the time and just before you signed this note did S. H. Edwards make any statement to you about the policy you were to receive or about the note?" The plaintiff objected to this question, upon the ground that the note was the evidence of the contract sued on, and that it was not shown that said conversation was pertinent to the issue, and that it called for illegal, irrelevant, and immaterial evidence. The court overruled this objection, and the defendant duly excepted. The witness answered: "Edwards said he would give me a policy to mature in 20 years, and after I had made three annual payments I could borrow 90 per cent. of the face value at 4 per cent. This was to be in the policy." On the cross-examination of the plaintiff, he identified the letter of date March 26, 1897, which he (defendant) had written to Edwards in reference to said policy, and this letter was introduced in evidence. He stated in the letter that he could not keep the policy, that he was not able to make the payments. The defendant further testified in his rebuttal examination that the letter introduced in evidence was the second letter he had written to Edwards, having previously told him in a letter written shortly after the receipt of the policy that it was unsatisfactory to him. During the examination of the defendant as a witness he was asked the following question: "Did he [Edwards] tell you he was the agent of the Washington Life Insurance Company?" The plaintiff objected to this question, upon the grounds (1) that it was incompetent to prove agency by the declaration of the alleged agent, and (2) because it called for irrelevant evidence, and the question was leading. The court overruled this objection, and the plaintiff duly excepted. The witness answered that Edwards told him he was the agent of the Washington Life Insurance Company. Edwards as a witness testified that the defendant came to him, and asked him about the insurance policy; that he explained to him the different policies, and, upon his telling him what character of policy he issued, he made out his application; that he read to him every question contained in the application, and wrote down the answers as he made them, and then the defendant signed said application; that at the time of making the application the defendant executed the note here sued on, making it payable to the plaintiff, John Alley Parker; and that the application was then forwarded to said Parker, and in a short time thereafter the defendant received the policy of insurance, which was of the character that the defendant had said he issued. The witness Edwards further testified that he told the defendant at the time of making out the application that the Washington Life Insurance Company was loaning 90 per cent. of the cash surrender value of the policy, but that the company could not promise to loan a certain amount three years hence. During the cross-examination of the defendant Edwards he was asked the following question: "When you received the note, were you the agent of John Alley Parker?" To this question the plaintiff objected, upon the ground that agency can be proven only by the statement of facts, and not by a general statement that one is the agent of another. The court overruled this objection, and the plaintiff duly excepted. The witness answered that he was the agent of John Alley Parker at the time he received the note from the defendant.

The court in its general charge, among other things, instructed the jury as follows: (b) "If you are reasonably satisfied from the evidence that, at the time the application was made, Edwards represented to the defendant that he was to receive in the way of a...