Tapscott v. Gibson

• Citation: 129 Ala. 503,30 So. 23
• Parties: TAPSCOTT v. GIBSON.
• Decision Date: 16 April 1901
• Court: Supreme Court of Alabama

30 So. 23

129 Ala. 503

TAPSCOTT v. GIBSON.

Supreme Court of Alabama

April 16, 1901

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Action by J. P. Gibson against J. C. Tapscott. Judgment for plaintiff. Defendant appeals. Affirmed.

The complaint, as originally filed, contained only one count, in which the plaintiff claimed of the defendant the sum of $150 with interest thereon from January 1, 1894, alleged to be due "by virtue of a certain note executed by the defendant to one W. R. Teague in the year 1893, and due on the 1st day of January, 1894, for the sum of one hundred and fifty dollars. Plaintiff avers that the said W. R. Teague transferred the said note to one E. H. Sharpley, and that the said E. H. Sharpley transferred the said note to this plaintiff, and that plaintiff is now the owner of said note and that it is due and unpaid. Plaintiff avers that in and by the provisions of said note the defendant waived his right to claim any property exempt from levy and sale under legal process, and that in and by the provisions of said note the defendant agreed to pay a reasonable attorney's fee provided the said note was not paid at maturity; and the plaintiff says that twenty-five dollars is a reasonable attorney's fee. Plaintiff says that the said note has not been paid at maturity. Plaintiff says that the said note has been stolen from him in the state of Texas, and that it has not been paid to him." This complaint was verified by the certificate of the clerk of the circuit court, reciting that "J. P. Gibson, the plaintiff in said cause, being sworn to speak the truth, deposed and said that the allegations of the foregoing complaint are true." This certificate of verification was signed by the clerk of the court in his official capacity. To this complaint the defendant demurred upon the following grounds: "(1) There is no affidavit of the plaintiff accompanying the complaint of the loss or destruction of the note sued upon and that the same has not been paid or otherwise discharged. (2) The writing purporting to be an affidavit, annexed to the complaint, is not a compliance with the statute, and is insufficient to supply said note. (3) The writing purporting to be an affidavit, and attached to the complaint, is not signed by the alleged affiant. (4) It is not averred in the complaint that the note sued on was transferred to E. H Sharpley before maturity. (5) It is not averred in said complaint that said note was transferred to the plaintiff before maturity." This demurrer was overruled. Thereupon the defendant filed his sworn plea averring that the note described in the complaint, and upon which the action was founded, was not executed by him, or by any one authorized to bind him. The defendant also interposed special pleas, in which he set up that he was only the surety of one F. F Tapscott on the note sued on; that his signature to the note was acquired by the fraud of one Teague, who was the original payee of the note, in that said note was given in payment of the purchase by F. F. Tapscott of the right to sell a patent bed spring and brace in Lauderdale and Colbert counties, said Teague, the seller of said patent, representing that he was the owner thereof, and that the right sold to F. F. Tapscott was a valuable right; that, relying upon this representation, F. F. Tapscott executed the note to said W. R. Teague, and the defendant signed the same as surety. It was then averred in said special plea that the patent right was not owned by said Teague, nor was the same valuable or salable. The defendant also filed a special plea, in which he set up the facts that he was a surety on the said note, and that he had notified the plaintiff and his transferror, one E. H. Sharpley, that he was such surety, and requested them to bring suit against F. F. Tapscott, inasmuch as said F. F. Tapscott was about to move from the state; that, notwithstanding this notice or request, neither the said Sharpley, who was at that time the holder of said note, nor the present plaintiff, brought action against F. F. Tapscott. After the filing of these pleas, the plaintiff offered to amend the complaint by adding thereto a second count, in words and figures as follows: "2d Count. That plaintiff claims of the defendant the sum of one hundred and fifty ($150) dollars, due by note executed to W. R. Teague by the defendant and one F. F. Tapscott on the 18th day of February, 1893, and due and payable twelve months after date, which note was by said W. R. Teague, for value, and before maturity, transferred to E. H. Sharpley, and by him, for value, transferred and assigned to the plaintiff. The plaintiff avers that in and by said note the defendant waived his right to claim any property exempt from levy and sale under legal process, so far as the collection of said amount is concerned." The defendant objected to the amendment of the complaint, and moved to strike the second count from the file, upon the ground that said count introduced an entirely new cause of action, and was an entire departure from the cause of action as contained in the original complaint. This motion was overruled. To the complaint, as amended, the defendant filed the same pleas as were introduced to the original complaint, including the sworn plea of non est factum. The plaintiff then filed the following replications: "(1) Each of said pleas is untrue. (2) Prior to the purchase of said note by E. H. Sharpley, defendant informed said Sharpley that said note was all right, upon which assurance said Sharpley relied, and parted with value for said note. (3) Prior to plaintiff's acquisition of said note, defendant assured him that the same was a valid and binding obligation, and would be paid, upon which assurance plaintiff parted with value to acquire. (4) Prior to plaintiff's acquisition of said note, defendant came to him, and begged him to purchase the same from said E. H. Sharpley, which plaintiff, at defendant's request, did, and parted with value therefor, being wholly ignorant at the time of any infirmity connected with said note, or with any consideration therefor. (5) Defendant operated extensively under the patent right for said new spring, and made several sales himself of territory and rights thereunder, and derived great pecuniary benefits therefrom, which he has not offered to pay or surrender to said Teague." Upon issue joined upon these pleadings, the cause was tried.

J. P. Gibson, the plaintiff, as a witness in his own behalf, testified that he was the owner of a promissory note made by F. F. Tapscott to the defendant, J. C. Tapscott, for the sum of $150, which was dated some time in January, 1893, and payable to W. R. Teague, and due January 1, 1894, but that he was not sure as to the date of said note. The defendant objected to this evidence in reference to the note, and moved to exclude the same upon the ground that the note itself was the best evidence. Thereupon the plaintiff's attorney stated that the note had been lost. The court overruled the objection and motion of the defendant, and to this ruling the defendant duly excepted. Upon the plaintiff, as a witness, testifying that he lost the note, or it was stolen from him, in Texas, he was asked to describe the contents of said note. The defendant objected to this question, on the ground that it was not an action on a lost note. The court overruled this objection, permitted the witness to describe the contents of the note, and to this ruling the defendant duly excepted. The witness testified that the note was for $150, and was due January, 1894, and contained a waiver of exemptions, and provided for the payment of a reasonable attorney's fee; that at the request of the defendant in this case he purchased the note from E. H. Sharpley, to whom it had been transferred by W. R. Teague, the original payee; that the defendant told him, before he purchased the note, that E. H. Sharpley was the owner of said note, and was pressing him for payment, and requested the plaintiff to purchase the note; and the defendant promised to pay the same at an early date, stating that the note was all right. On cross-examination the plaintiff, as a witness, described the indorsements on said note as being first from W. R. Teague, without recourse, to E. H. Sharpley, and from E. H. Sharpley to the plaintiff, without recourse; and further testified that the name of W. B. Simmons was signed as a witness to said note. Thereupon the defendant objected to all of the testimony of said witness describing the contents of said note, and moved to exclude the same from the jury upon the ground that the execution of the said note had not been proven by the subscribing witness. The court overruled the objection, and the defendant duly excepted. The plaintiff further testified that the note so transferred to him by Sharpley was a common waive note, and was not a bond, and did not recite at the bottom thereof, "Witness my hand and seal;" that said note was not payable at a bank, or any particular place; and, further, that the witness did not know whether the name of J. C. Tapscott or F. F. Tapscott appeared first at the bottom of the note.

E. H Sharpley, a witness for the plaintiff,...