Vogler v. Manson

• Decision Date: 17 May 1917
• Docket Number: 6 Div. 526
• Citation: 76 So. 117,200 Ala. 351
• Parties: VOGLER et al. v. MANSON.
• Court: Alabama Supreme Court

76 So. 117

200 Ala. 351

VOGLER et al. v. MANSON.

6 Div. 526

Supreme Court of Alabama

May 17, 1917

Appeal from Circuit Court, Cullman County; R.C. Brickell, Judge.

Assumpsit by H.T. Manson against Mrs. H.E. Vogler and P.G. Hartun. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under section 6, p. 449, Acts 1911 Affirmed.

Emil Ahlrichs, of Cullman, for appellant.

George H. Parker, of Cullman, and Eyster & Eyster, of Albany, for appellee.

SAYRE J.

Action on a negotiable promissory note by appellee against appellants. By the indisputable record it appears that the demurrers filed against defendants' several pleas on September 27, 1915, were ruled in favor of the defendants appellants. It also appears that demurrers to the pleas numbered 8, 9, and 10 were allowed to be filed on March 14 1916, and these demurrers were sustained. But these demurrers are not found in the transcript of the record, and we cannot know what ground they took against the pleas. The ruling as to the eighth plea is not assigned for error, while the brief for appellants concedes, in effect, that the ninth and tenth pleas were bad, but alleges that the true ground of objection to them was not taken by the demurrers, as the statute requires. In the state of the record, here appearing, we must presume that plaintiff availed himself of any tenable ground of objection to these pleas. We may add that these were pleas of payment in a certain sort, and no harm could have come to appellants by the rulings against them, for there was another plea of payment, under which any evidence of payment may have been introduced, and every indication afforded by the bill of exceptions points to the conclusion that appellants suffered no restriction whatever in the adduction of evidence on this point.

Formerly it was the law of this state--settled by the decisions of this court which, it may be conceded, were against the weight of authority elsewhere--that one who held negotiable paper taken as collateral security for a pre-existing debt was not a bona fide holder for value, and not entitled to protection against equities and defenses existing between prior parties. Connerly v. Planters' & Merchants' Ins. Co., 66 Ala. 432, and cases cited; 2 Encyc.Dig. p. 374, § 209. But it results from some definitions contained in the Uniform Negotiable Instruments Law, adopted in this state in 1907 (Code, §§ 4958-5143), that our law on the point mentioned above has been changed, so that now a holder, otherwise in due course, is not deprived of the advantage of his position as a bona fide holder for value by reason of the fact that he has taken the paper as collateral security for a pre-existing debt. These definitions are as follows:

Section 5007: "A holder in due course is a holder who has taken the instrument under the following conditions," among others nominated in the section "(3) That he took it in good faith and for value."

Section 4982: "An antecedent or pre-existing debt constitutes value, and is deemed such, whether the instrument is payable on demand or at a future time. Where value has at any

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