Tobias v. Morris

• Decision Date: 08 May 1900
• Citation: 28 So. 517,126 Ala. 535
• Parties: TOBIAS v. MORRIS ET AL.
• Court: Alabama Supreme Court

28 So. 517

126 Ala. 535

TOBIAS v. MORRIS ET AL.

Supreme Court of Alabama

May 8, 1900

Appeal from circuit court, Montgomery county; J. C. Richardson Judge.

Action by Mrs. Birdy Tobias against Josiah Morris and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

The complaint contained nine counts. The first count sought to recover $800 as money had and received by the defendants on September 16, 1895; the second count was for $300 for money had and received on or about the 8th day of November, 1895 the third count was for $300 for money had and received on December 23, 1895; and the fourth count was for $678.30, as money had and received on December 30, 1895. The fifth sixth, seventh, and eighth counts sought to recover the said several sums of money, and were the common counts on an account stated and for money loaned. The ninth was a special count, which is copied in the opinion. The defendants filed several special pleas, numbered 7, 8, 9, and 10, in which they set up as a defense that on September 16, 1895, an account was opened with them by B. Tobias; that on that date a bill of exchange on New York was presented to them by B Tobias and her husband, M. S. Tobias; that the said draft was cashed and deposited with them in the name of M. S. Tobias that at such time M. S. Tobias, with whom the transaction was had, notified the defendants that the money deposited at that time and to be subsequently deposited by them would be drawn out by checks in the name of B. Tobias, in the name of M. S Tobias, and that accordingly all of the money had been drawn out by checks so drawn. These several pleas set out in detail the facts incident to the defense interposed, which their evidence tended to sustain. To each of these pleas the plaintiff filed several separate demurrers. After the overruling of these demurrers to all of the pleas except plea No. 7, the plaintiff filed several replications to pleas Nos. 8, 9, and 10. The defense demurred to these replications, which demurrers, it is recited, were sustained. It is unnecessary to set out the grounds of the demurrers to the pleas or the replications, inasmuch as the judgment entry does not present such a ruling thereon as will be reviewed by this court. The cause was tried upon issue joined upon plea of the general issue and payment respectively. The ruling of the court upon the pleadings as contained in the judgment entry is as follows: "Plaintiff thereupon interposed her demurrers to said pleas 7, 8, and 9, which demurrers, being argued by counsel and understood by the court, were sustained as to plea numbered 7 and overruled as to pleas numbered 8 and 9. Thereupon plaintiff filed her replications numbered 1, 2, 3, 4, and 5 to the said pleas numbered 8 and 9, to which replications defendants interposed their demurrers, which said demurrers the court, upon consideration, sustained. Leave of the court having been first obtained, defendants filed plea numbered 10, to which plaintiff interposed her demurrer, which was filed on the 10th day of June, 1899, which demurrer, upon consideration of the court, was overruled. Thereupon plaintiff filed replications numbered 5 1/2, 6, and 7 to plea numbered 10, to which said replications defendants demurred, which said demurrer, upon consideration by the court, was sustained." The evidence on the part of the plaintiff tended to establish the following facts: About the 16th of September, 1895, the plaintiff received a certain bill of exchange for $800, payable to her, drawn by the cashier of the First National Bank at Rockdale, Tex., on the Chase National Bank of New York City. Being desirous of depositing the same in some bank, plaintiff went, in company with her husband, carrying with her said exchange, to one Capt. W. B. Jones, for the purpose of conferring with him in reference to placing the same in some bank for collection and deposit. At the suggestion of Capt. Jones that she go to the defendants' bank, she thereupon handed said exchange to Capt. Jones, with the request that he deposit it for her to her credit in said bank, to which Capt. Jones replied he would do so. Thereupon she, in company with Capt. Jones and her husband, proceeded across the street to the banking house of Josiah Morris & Co., Capt. Jones taking the exchange with him. When they reached the bank, Capt. Jones presented it to the receiving teller, and asked him to place it to the credit of Mrs. B. Tobias. The receiving teller, after looking at the check, said that he would do so, but that she would have to indorse it. Thereupon Capt. Jones handed her the exchange, and she took it, and indorsed it there in the bank, and handed it back to Capt. Jones, who then handed it to the receiving teller. The husband of the plaintiff never had said exchange in his possession at all. The plaintiff heard nothing said there in the bank except what has been stated; nor did she see her husband sign a book of any sort while she was in the bank, nor was anything said in said bank, in her presence, by any one, to the effect that her husband, Marion Tobias, would draw out this money by checks signed in her name. The check or draft belonged to her, and was in part payment for some land which she got from her father's estate. Plaintiff did not know anything, of her own personal knowledge, with reference to the deposits of $300 on the 8th of November, 1895, nor the $200 on the 23d of December, 1895, but she said that her husband, Marion Tobias, had no money of his own, was engaged in no business, but that he had had money of hers in his possession, the proceeds of land belonging to her, over and above the amount of said exchange. About the middle of December, 1895, plaintiff received a check dated December 11, 1895, drawn by I. A. Worley, and payable to her, on the First National Bank of Rockdale, Tex., for $680. The check did not come direct to her, but was sent by Mr. Worley to the defendants' bank with a paper to be signed by her, releasing a vendor's lien, and upon the signature of which the check was to be delivered to her. The release was signed by her, and the check delivered to her by the defendants' bank, and she thereupon indorsed it there, and handed it to one of the representatives of the defendants' bank, who said that the bank was not willing to pay the check right then, as they knew nothing of the Texas bank, and would have to make inquiry before paying the money; that they would send the check for collection, and when they heard from it they would place the proceeds to the credit of her account. She assented to this, and the check was forwarded by the defendants' bank for collection. Both this exchange and the check were collected by the defendants' bank, and all of said deposits were made to the plaintiff's credit with said bank. She had demanded the money of the bank, but payment was refused. She did not know that the money had been paid out by the bank until the 7th of January, 1896; had never authorized any one to sign her name to checks, nor to in any manner receive said money. When she heard the money was gone, she immediately took steps looking to its recovery. She and her husband were not living together at the time, and had not lived together since January 2, 1896, and she knew nothing of the money having been drawn out until after he had left her. The testimony on the part of the defendants tended to show that, at the time of the delivery to the defendants' bank of the exchange for $800, M. S. Tobias, the husband of the plaintiff, said that he wanted to open an account in the name of B. Tobias; that B. Tobias was his wife; that either M. S. Tobias or Capt. Jones handed to its receiving teller a check payable to the order of B. Tobias, and that thereupon the receiving teller took a record of the signature "B. Tobias," signed by M. S. Tobias; that the money was placed to the credit of Mrs. B. Tobias; that M. S. Tobias stated that he would check out the money in the name of B. Tobias. J. R. Sayre, a witness for the defense, testified that on September 16, 1895, he was employed by the banking house of Josiah Morris & Co., occupying the position of receiving teller, and that the account of said Josiah Morris & Co. with B. Tobias was opened on that date; the negotiations incident to the opening of such account being had with him as the representative of the defendants. He testified that, at the time the deposit was made and the account was opened, Capt. W. B. Jones and M. S. Tobias were present, and that M. S. Tobias stated to him that he wanted to open an account in the name of B. Tobias, who was his wife, and that thereupon said M. S. Tobias handed witness a check payable to the order of B. Tobias; that thereupon the witness took a record of signatures, and requested M. S. Tobias to write therein the signature by which the money was to be drawn out; that thereupon he wrote "B. Tobias," stating that the money was to be checked out by him, M. S. Tobias, in the name of B. Tobias. This witness further testified that he did not see the plaintiff at the time of this transaction, and he did not know that the plaintiff was present, or whether she heard any part of the conversation or not. He further testified that all of the money which was deposited was credited to the account of B. Tobias, and was paid out on checks signed "B. Tobias, by M. S. Tobias." The other facts of the case necessary to an understanding of the case on the present appeal are sufficiently stated in the opinion. There were 23 charges requested by the plaintiff and refused by the court, to the refusal to give each of which the plaintiff separately excepted. It is, however, unnecessary to set out these charges in detail. At the request of the defendants, the court gave to the jury the following...