Scarborough v. Borders

• Decision Date: 27 May 1897
• Citation: 115 Ala. 436,22 So. 180
• Parties: SCARBOROUGH v. BORDERS ET AL.
• Court: Alabama Supreme Court

22 So. 180

115 Ala. 436

SCARBOROUGH v. BORDERS ET AL.

Supreme Court of Alabama

May 27, 1897

Appeal from city court of Anniston; James W. Lapsley, Judge.

Action by Eba Scarborough against A. H. Borders & Co. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This action was brought by the appellant, Eba Scarborough, against the appellees, A. H. Borders & Co., and counted upon a promissory note, which was executed by A. H. Borders & Co. to one E. A. Hughes, the plaintiff averring in his complaint "that said note was duly transferred and assigned to him and was his property."

The defendants pleaded the following pleas: (1) That they did not promise and undertake in the manner therein alleged. (2) That they had paid the debt or note for the recovery of which this suit was brought before the action commenced. (3) That they paid the original payee of said note, A. E. Hughes, the full amount of said note or debt, for the recovery of which this suit was brought, before it was transferred to the plaintiff Eba Scarborough. (4) That at the time said action was commenced and prior to notice to the defendants of the transfer of said note, the original payee, A. E. Hughes, was indebted to defendants in a sum equal to, or in excess of the amount as evidenced by said debt or note, the foundation of this suit, for goods, wares and merchandise sold by and money paid or advanced to the original payee of said debt or note the foundation of this suit, A. E. Hughes, at her request from February, 1889, to March 13, 1890, which defendants hereby offer to set off against the demand of the plaintiff. (5) That before this action was commenced on, to wit, the 13th day of March, 1891, and before notice to them of said transfer of said note, defendants had a settlement with A. E Hughes, the original payee of said debt or note, the foundation of this suit, by the terms of which settlement defendants paid and fully satisfied the debt or note for the recovery of which this suit is brought. The sixth and seventh pleas set up payment of the note sued upon before the commencement of this suit, and before the note was transferred or assigned to the plaintiff.

The plaintiff demurred to the pleas as follows: "(1) Plea No. 2 purports to be a plea of payment, and fails to show to whom it was paid, when it was paid, and that defendants did not have notice of the transfer of said note to this plaintiff. (2) Plea No. 4 fails to show that A. E. Hughes was indebted to defendants before the note was transferred to plaintiff, and fails to aver that the sum offered to be set off by defendants was a legal subsisting demand against A. E. Hughes at the time of transfer of said note. It is not shown that the said A. E. Hughes contracted in writing with the written consent or concurrence of her husband for said goods, wares and merchandise with defendants. (3) Plea No. 5 fails to show that the settlement therein alleged with the said A. E. Hughes was had before the transfer of said note, and before defendants had notice of the transfer of said note." These demurrers were overruled.

On March 23, 1896, by leave of the court the defendant filed an additional plea which was as follows: "That the said note on which this suit is founded has not been duly and legally transferred and assigned to the plaintiff, and is not and was not at the time the suit was instituted, the property of the plaintiff. And defendant makes oath that this plea is true." Plaintiff demurred to the plea filed March 23, 1896, upon the following grounds: (1) Because it is not necessary that the note, which is the foundation of this suit, should have been assigned or transferred in writing to plaintiff. (2) It is not alleged in said complaint that it was duly and legally assigned to the plaintiff. (3) It is not alleged in said complaint that said note was duly and legally transferred and assigned to plaintiff. (4) Plaintiff moves to strike out of said plea the words "and assigned to plaintiff," for the reason and upon the ground that it is not necessary to entitle plaintiff to maintain this action that note should have been assigned or conveyed to him in writing. This demurrer was overruled.

Thereupon the plaintiff filed a replication to plea No. 4, which replication was demurred to. The substance of this replication and the demurrer thereto which was sustained are sufficiently stated in the opinion.

It is not necessary to set out the facts of the case in detail. The cause was tried by the court without the intervention of a jury, and upon the hearing of all the evidence, judgment was rendered for the defendants. Plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Matthews & Whiteside, for appellant.

Fred L. Blackmon and John Pelham, for appellees.

HARALSON J.

1. The rulings of the court in overruling plaintiff's demurrers to the second, fourth and fifth pleas...