Trost v. Beck

• Decision Date: 22 May 1924
• Docket Number: 6 Div. 73.
• Citation: 211 Ala. 323,100 So. 472
• Parties: TROST v. BECK.
• Court: Alabama Supreme Court

100 So. 472

211 Ala. 323

TROST v. BECK.

6 Div. 73.

Supreme Court of Alabama

May 22, 1924

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action on promissory note by Emmitte Trost against Flora S. Beck. Judgment for defendant, and plaintiff appeals. Affirmed.

Morris Loveman, of Birmingham, for appellant.

Tillman Bradley & Baldwin and John S. Coleman, all of Birmingham, for appellee.

GARDNER J.

Suit by appellant against appellee upon a promissory note. The defendant is the wife of A. W. Beck, and her defense is rested upon the theory that the note sued upon was given as security for the debt of the husband in violation of section 4497 of the Code of 1907, which provides that "the wife shall not, directly or indirectly, become the surety for the husband."

The cause was tried before the court without a jury. Plaintiff rested his case upon the introduction of the note, and did not offer other proof or himself testify during the progress of the cause. The defendant and her husband testified orally before the court, and upon conclusion of the evidence the court entered judgment for defendant, from which plaintiff has prosecuted this appeal.

The evidence is without substantial conflict, and the only question here presented is whether there was proof sufficient to justify the judgment rendered. The note bears date January 1, 1918, and is made due "one day after date." On this date and for many years prior thereto defendant and A W. Beck had been man and wife. At the time of the execution of this note by defendant, her husband was indebted to the plaintiff in the sum of $4,000, evidenced by several promissory notes. The defendant knew that her husband was due the plaintiff this sum, and she signed the note at her husband's request, stating "the plaintiff, Trost, wanted her note, and A. W. Beck asked her to sign it." She received no consideration of any character for the execution of this note. From the testimony of A. W. Beck, the husband, we set out the following pertinent excerpt:

"That he had had a conversation with Mr. Trost prior to the execution of the note by Mrs. Beck relative to the execution of the note to take care of his indebtedness. That Mr. Trost said he would be glad to extend the paper if Mrs. Beck would give her note instead of his note; that he, the plaintiff, would rather have her note than his note, and the plaintiff requested him to ask Mrs. Beck to execute her note; that he did so; that he made out the note and took it to his wife and requested her to sign it, and that she did so; and that he then returned the defendant's note to Mr. Trost; that upon giving the plaintiff his wife's note the plaintiff returned his notes marked 'Paid' as shown by the indorsements thereon; that plaintiff returned his notes and that he, at the time they were returned to him, tore off his signature. That he had kept these notes returned to him in his possession ever since that time. That Mrs. Beck's the defendant's, name was not signed to the notes given by him. That after Mrs. Beck gave her $4,000 note and it was delivered to Mr. Trost, that Mrs. Beck got no money, nor did she ever get any money after the execution of the note by her. That at the time of the execution by Mrs. Beck of the note sued on his debt was owing, and that he had gotten all the money represented by these notes, and that Mrs. Beck, his wife, had gotten none of it. *** That Mr. Trost was pressing him for payment of the notes and that in order to settle these notes, or to surrender these notes into his possession, Mr. Trost required, or requested the execution of a note by Mrs. Beck to take up these notes of his."

It thus appears from the foregoing that the transaction resulting in the execution of this note by the wife was had directly with the husband's creditor, who was pressing the latter for payment, and who requested the husband to have the wife to execute the note. We are of the opinion that the principle embraced in the case of Lamkin v. Lovell, 176 Ala. 334, 58 So. 258, controls this cause adversely to appellant's contention.

In Staples v. City Bank & Trust Co., 194 Ala. 687, 70 So. 115, after citing the above authority, the court pointed out the fundamental distinctions between a loan secured from the husband's creditor and one secured from a third person who was without interest in the fund; and the law looks to the intention and result rather than the means employed in scrutinizing transactions of this character. In Lamkin v. Lovell, supra, this court quoted with approval from the Court of Appeals of Kentucky in Third Nat. Bank v Tierney, 110 S.W. 293, 18 L. R. A. (N. S.) 81. The statute there under consideration was similar to ours, and the facts bear close analogy to the instant case. The following quotations from that authority are...