Tuscaloosa Cotton-Seed Oil Co. v. Perry

• Decision Date: 27 June 1888
• Citation: 4 So. 635,85 Ala. 158
• Parties: TUSCALOOSA COTTON-SEED OIL CO. v. PERRY.
• Court: Alabama Supreme Court

4 So. 635

85 Ala. 158

TUSCALOOSA COTTON-SEED OIL CO. v. PERRY.

Supreme Court of Alabama

June 27, 1888

Appeal from circuit court, Tuscaloosa county; S. H. SPROTT, Judge.

This was an action by the appellee, Medora Perry, as administratrix of the estate of her husband, W. H. Perry deceased, against the appellant, the Tuscaloosa Cotton-Seed Oil Company, to recover the amount due her intestate on a note made by the plaintiff's intestate, as president of the defendant company, to himself as an individual. There was a verdict and judgment for the plaintiff, and the defendant appealed. Code Ala. § 2810, provides that "all objections to the admissibility of the entire deposition in evidence must be made before entering on the trial, and not afterwards, unless the matter is not disclosed in the deposition, and appears after the commencement of the trial."

Martin & McEachin, for appellant.

Hargrove & Van De Graaff, for appellee.

CLOPTON J.

There is no assignment of error which requires us to consider the rulings of the court in respect to the admissibility in evidence of the declarations and promises of Caswell, the president of the defendant. Unless it be want of jurisdiction of the subject-matter, which cannot be waived by the parties, errors, though they may be apparent in the record, will not be regarded if not assigned. Lehman v. Meyer, 67 Ala. 396.

The objection to the documentary evidence is general and undefined, and, for this reason alone, could properly have been disregarded by the court. Dryer v. Lewis, 57 Ala. 551.

The objection to the deposition of Williams is that the commissioner's certificate is fatally defective. The defect was disclosed in the deposition; and the objection, which goes to the admissibility of the entire deposition, was made after the trial was commenced. The statute is imperative that all objections to the admissibility in evidence of the entire deposition must be made before entering upon the trial, unless the matter is not disclosed in the deposition, and appears after the commencement of the trial; and prohibits such objections being made afterwards. Code 1886, § 2810.

Appellee's intestate was president of the defendant corporation at the time of the execution of the note which is the foundation of the suit, and, as such officer, signed the corporate name thereto. The note is payable to his order, and was indorsed by him, and after his death was paid by appellee as the administratrix of his estate. She now seeks by this action to recover the amount so paid. The indorsement of the name of her intestate on the note does not of itself disentitle the plaintiff to sue thereon. Being payable to his order, and found in her possession, the presumption is that the note was regularly returned to her as his personal representative. Herndon v. Taylor, 6 Ala. 461. Independent of the presumption, the evidence incontestably shows that she obtained the note by paying the amount due in discharge of the indorsement. The payee and first indorser of a note which has been put in circulation may pay it, and maintain an action on the note against the maker. Pinney v McGregory, 102 Mass. 186.

The next assignment of error refers to the competency of the note as evidence to go to the jury. The complaint contains a special count on the note, which avers that it was made by defendant. Its execution was not put in issue by plea verified by affidavit. In such case preliminary proof of execution is not requisite under the statute. Wimberly v. Dallas, 52 Ala. 196. Also, if the plaintiff had been entitled to recover only on the common counts, the proof of execution and authority is sufficient to admit the note in evidence. It is not controverted that it was the usual course of business, in the management of the affairs of defendant, that notes for money borrowed should be signed by the president without previous order of the board of directors, and that many notes made by plaintiff's intestate, and particularly two other notes of the same tenor, made in the same manner, about the same time, and for the same purpose as the note in suit, had been paid by the defendant. These acts of the president, in connection with such recognition and acquiescence of the corporation, are competent and sufficient evidence of the fact and scope of the agency. Insurance Co. v. Peacock, 67 Ala. 253. But the objection is not rested on a general want of authority to make notes binding on the corporation, but on the invalidity of the note on which the suit is founded. The specific objection now made is that the note was executed by an officer of the corporation, payable to his own order,-a contract with himself personally. The objection seeks to have the question whether it is a binding obligation on defendant determined by the court, without submitting it to the jury on the whole evidence. This cannot properly be done. If there had been a special plea, verified by affidavit,...