Terre Haute Brewing Co. v. McGeever

• Citation: 73 So. 889,198 Ala. 474
• Decision Date: 16 November 1916
• Docket Number: 6 Div. 349
• Parties: TERRE HAUTE BREWING CO. v. McGEEVER et al.
• Court: Supreme Court of Alabama

73 So. 889

198 Ala. 474

TERRE HAUTE BREWING CO. v. McGEEVER et al.

6 Div. 349

Supreme Court of Alabama

November 16, 1916

Rehearing Denied Jan. 18, 1917.

Appeal from City Court, of Birmingham; John H. Miller, Judge.

Action by the Terre Haute Brewing Company against Hugh McGeever and others. From a judgment of nonsuit after the court overruled the demurrer to defendants' pleas, plaintiff appeals. Reversed and remanded.

Sterling A. Wood, of Birmingham, for appellant.

Richard H. Fries, of Birmingham, for appellees.

MAYFIELD J.

Appellant sued appellees on a bond, purporting to have been executed by appellees, as sureties, guaranteeing the faithful performance of a certain contract made between one Abe Siegel and appellant. This contract is alleged (and on its face purports) to be an Indiana contract, by which Abe Siegel agreed to purchase beer from appellant, the beer to be delivered f.o.b. cars at Terre Haute, Ind., and to reship to appellant, at said place, all empty bottles and other receptacles, for which he (Siegel) was to be allowed credit on his account at stipulated prices and amounts not necessary here to be specified. To the complaint all the defendants--four in number--filed a joint plea of non est factum, and a special plea as follows, numbered second:

"That the said Siegel mentioned conducted a licensed place of business at 1617 First avenue in the city of Birmingham, Ala., during the months of May, June, July August, and September, 1912, in which said Siegel sold the beer referred to in the said complaint, and in each count thereof and by reason thereof, with the plaintiff's knowledge the said contract is null and void under the laws of this state."

The plaintiff demurred to these pleas, assigning numerous grounds of demurrer, unnecessary to be here set out. The trial court overruled plaintiff's demurrer to each of these pleas whereupon plaintiff took a nonsuit; and plaintiff appeals to this court to test the correctness of the rulings which evoked the nonsuit.

The plea of non est factum was had for the reason that it was pleaded jointly and not separately, whereas the defense is personal and single as to each defendant. Under this plea--issue being joined thereon--the burden of proof would have been on the plaintiff to prove the execution of the bond by all the defendants; and, if he failed in the proof as to any one, he would not be entitled to a judgment against the other three, because the plea would have been proven. This, of course, is not the law. Conceding that the bond was not signed by one, but was signed by the other three, the latter would be liable, but the first not. That is to say, the defense is personal and several as to each, and not joint as to all. If the defendants desired to file one plea for all, instead of four, one for each, the allegation should have been that the bond was not executed by any one of the four. Had this been done, the plaintiff could have met the plea by proof that any one of the four executed the bond but the other defendants would have been held liable, though they had not executed the bond. It thus appears that defendants would put themselves at a great disadvantage by filing one plea for all, with the allegation last suggested; but they would be at no greater disadvantage than the plaintiff with the allegation of the instant plea "that the defendants did not execute the bill." The source and reason of the trouble is that the defense of non est factum, like that of infancy, insanity, etc., is a purely personal defense, and hence the plea should be filed by each separately, though all desire to avail of it.

The action on the bond is both joint and several; the plaintiff is not, under the general issue, obliged to recover against all or none. So far as the action is several, the joint plea is no answer. It may be true that the note was executed by one, and not by the other three, or vice versa, and still the plaintiff would be entitled to recover against the one, or three, who did not execute it; that is, so far as this defense is concerned.

The chief object of all pleading is that the parties be brought to issue. The issue thus arrived at ought to be: (1) Material; (2) single; and (3) certain. Another fundamental purpose of pleading is to avoid confusion, obscurity, and prolixity.

The trouble with the plea of non est factum, interposed in an attempt to prevent prolixity or repetition, is that all the other rules mentioned are violated. A plea of non est factum denies that the deed, bond, or note sued on is the deed, bond, note, or bill of the defendant. The defendant, under this plea, may show that the instrument sued upon was never in point of fact executed by him; but such a plea does not, in point of law, deny the validity of the instrument, though its effect, if it is sustained, is a verdict or judgment in favor of the defendant. It is purely personal, and may be waived; and it is waived unless specially pleaded. And one defendant cannot interpose the plea for another, for the reason that the person who in point of fact may not have validly executed the instrument may nevertheless desire to be bound and to waive the invalidity of the execution. It, therefore, follows that the trial court erred in overruling the demurrer to the joint plea of non est factum.

Plea 2 was likewise bad on demurrer. It alleged no facts which, if true, would constitute a defense to the action of covenant. The contract set up in the complaint, the faithful performance of which the bond sued on was made to guarantee on its face had nothing to do with any business which Siegel should carry on in Birmingham or in this state. The undertaking was not an Alabama contract, but an Indiana contract, and was intended to be, and was, in fact, wholly performed in Indiana, except as to the part providing for the reshipping of empty bottles, barrels, casks, etc., which was not at all illegal. Nothing appears in the complaint or in the contract which tends to show that the parties were violating, or intended to violate, any law of Alabama, prohibition or otherwise. The fact, if it be a fact, that Siegel violated the laws of Alabama, after the contract was made, would not render the alleged contract void or voidable. The sale of the beer, as alleged, was, so far as appears, perfectly lawful. Not only this, it was not within the protection of the condemnation of the Alabama laws because made and to be found beyond the jurisdiction of this state. The prohibition laws of this state do not, in fact, and were never intended to, apply to contracts of sales of liquors in other states. The attempt to give them such extraterritorial effect would make them void; and, as held by this, and all other state courts and the federal courts, the prohibition ...