Slaughter v. Green

• Decision Date: 16 December 1920
• Docket Number: 5 Div. 747
• Citation: 205 Ala. 250,87 So. 358
• Parties: SLAUGHTER et al. v. GREEN, Superintendent of Banks.
• Court: Alabama Supreme Court

87 So. 358

205 Ala. 250

SLAUGHTER et al. v. GREEN, Superintendent of Banks.

5 Div. 747

Supreme Court of Alabama

December 16, 1920

Rehearing Denied Jan. 26, 1921

Appeal from Circuit Court, Coosa County; S.L. Brewer, Judge.

Action begun by A.E. Walker, as Superintendent of Banks, and prosecuted to judgment by his successor, D.F. Green, against Melton Slaughter and another, upon a promissory note claimed to be owned by the Farmers' & Merchants' Bank of Goodwater, which the plaintiff was liquidating. Judgment for plaintiff, and defendants appeal. Affirmed.

In an action by the superintendent of banks on a note in the possession of a bank being liquidated, where there was evidence tending to show that the payee received from the bank value for the negotiable note before its maturity, and the defense was payment to the payee, the trial court cannot be held to have erred in overruling defendant's motion for a new trial after the jury found for plaintiff.

The substance of pleas 4, 5, and 6 sufficiently appears.

Plea 7 is that the plaintiff had no right to maintain this action against these defendants. Plea 8 is that the note sued on was deposited with the Farmers' & Merchants' Bank of Goodwater, by R.H. Crew, the payee of said note, as collateral security, and the defendants paid said note before they had any notice that it had been deposited with said bank.

Plea 9. That the note described in said complaint, and which is the basis of this suit, is the property of R.H. Crew, and while it is true that the said R.H. Crew wrote his name across the back of said note and left it in the Farmers' &amp Merchants' Bank, he did not sell said note to said bank and said bank did not become the owner of said note, but the same was left in said bank by the said Crew merely for convenience, and said bank did not acquire any title or interest in said note, and the plaintiff in this case did not acquire and is not the owner of any title to or interest in said note.

Plea 10. That the note sued on in this case was deposited by Crew the payee of said note, with the Farmers' & Merchants' Bank of Goodwater, Ala., as collateral to his note to said bank for $1,358.51, and that the said R.H. Crew has paid all of said note for $1,358.51, except the sum of $725, and the said Crew tendered to the plaintiff the balance of $725 before this suit was brought, and the said sum of $725 the said Crew has brought into this court, and the plaintiff no longer has any right to said note and no right to maintain any action thereon or to claim any right thereunder.

The following matters were presented in the assignments as follows:

(8) In overruling the objection of the defendant to the following question asked the witness M.M. Eppes, by plaintiff: "Now, from the examination of these entries there, refresh your recollection of the transaction about what happened about this note, and I will ask you to state to the court and jury what your recollection is of how the bank came into possession of this particular paper and what the bank paid out at that time in February, and how it was paid out."

(9) In failing to exclude the answer to said question: "The note came into the bank for Mr. Crew; as to the exact way the money was paid out, I do not know."

(10) In overruling defendant's objection to plaintiff's question to the witness Eppes: "But there was paid out that day how much money on that note?"

(11) In overruling motion to exclude the answer: "The records show that the transaction took place, or that the bank received a bill receivable that day for a thousand dollars."

(12) Overruling defendant's objection to the answer of the witness Eppes, as follows: "Either as I say, either one of two things, it either went to Mr. Crew's credit, or it went as a part payment in raising the capital stock of the bank."

(13) In overruling defendant's motion to exclude the following answer of the witness Eppes: "There is a way that it could have happened. It happened either one way or the other, as near as I can recall."

(14) The court erred in overruling and refusing to grant the objection of defendants as to the testimony as to what the records would show, on the grounds that the witness says that this is not the complete record.

The following are the charges referred to as refused to the defendant:

(2) The court charges the jury that if M.M. Eppes had any authority from R.H. Crew to use or to dispose of the note in question, Eppes could not be both seller and purchaser at the same time and in the same transaction, and an attempted sale or transfer of said note attempted to be made would be void.

(3) If you believe from the evidence that Crew placed the note sued on with the Farmers' & Merchants' Bank or with M.M. Eppes, the president of the bank, then anything that Eppes may have done or attempted to do with the note would be the same as if the bank had done it, and the bank itself is bound by what Eppes did with reference to said note.

(4) The president of a bank has a right to act for the bank and to bind the bank in any business transaction coming within the regular course and scope of the business of the bank, and if you believe from the evidence that the note sued on was deposited with the bank to be used as collateral by leaving it with Eppes, then if Eppes used the note in any way while it was in the bank or possession of Eppes, in this way, this would be the same as if the bank had used it, and the bank would not thereby be entitled to recover on the note.

J.W. Strother, of Dadeville, for appellants.

J. Sanford Mullins, of Alexander City, for appellee.

McCLELLAN J.

In liquidating the affairs of the Farmers' & Merchants' Bank of Goodwater, the then superintendent of banks, a state official, instituted this action against Malton and Arrie Slaughter to recover on a note executed by the Slaughters to R.H. Crew, and averred in the complaint to be "the property of the Farmers' & Merchants' Bank." Under the provisions of the act creating the banking department, the superintendent was authorized and directed to collect the debts, etc., of banks, the liquidation of the affairs of which became a duty under the law. Gen.Acts 1911, p. 50 et seq., particularly section 10, p. 61; Gen.Acts 1915, p. 88 et seq. In such circumstances, actions to collect debts and to render available assets of banks in course of liquidation are properly brought in the name of the superintendent. The complaint was amended in this instance so as to substitute the superintendent in office at the time of the trial. It is plain from the caption, a well as from the body, of the complaint that this action was instituted and prosecuted by the superintendents in their official capacity. Ala. City Ry. Co. v. Heald, 178 Ala. 636, 59 So. 461; Alverson v. Little Cahaba Coal Co., 201 Ala. 123, 126, 77 So. 547--among others. There is therefore no merit in the appellants' contention predicated of the idea that the action was brought in the individual, not the official capacity of the person named as the superintendent of banks.

In addition to general traverses, in different forms, the defendants (appellants) interposed pleas 4, 5, and 6, the fourth plea asserting payment before the suit was commenced and the other two, which were verified, averring that the bank did not own, was not beneficially interested in, the note sued on. These pleas (5 and 6) effected to cast the burden of proof, in respect of ownership of the note, upon the plaintiff. Code, § 3967. On motion of the plaintiff, the court struck from the file special pleas 7, 8, and 9. No prejudicial error resulted from this action of the court, since, if error affected this ruling, under pleas 5, 6, and 10, the defendant could have and really had the full benefit of such material matters as were alleged in these stricken pleas.

To secure the note sued on--a negotiable instrument--a mortgage was given to the payee by the payors. The plaintiff offered these papers in evidence, the bill of exceptions reciting this:

"On the back of said mortgage, in the corner at bottom of page, the payee and mortgagee had written his name, R.H. Crew. The defendant objected to the introduction in evidence of said paper and said note."

The court overruled the objection, and exception...