White v. Keith

• Decision Date: 01 December 1892
• Citation: 12 So. 611,97 Ala. 668
• Parties: WHITE v. KEITH.
• Court: Alabama Supreme Court

12 So. 611

97 Ala. 668

WHITE v. KEITH.

Supreme Court of Alabama

December 1, 1892

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by M. D. Keith against H. K. White on a note. From a judgment for plaintiff, defendant appeals. Affirmed.

H. K White, for appellant.

Leonidas C. Dickey, for appellee.

McCLELLAN J.

This action is by Keith against White on a promissory note payable at a certain bank, made by the defendant, and indorsed by N. R. McDavid. Default was made in payment at maturity, the note was protested for nonpayment, and notices of protest given. The complaint claims the face of the note with interest, attorneys' fees therein stipulated for and the costs of protest and notices thereof. The pleas were (1) tender of the amount claimed except the fees for protest and notices; (2) that the defendant did not undertake and promise in the manner and form alleged in the complaint; (3) that he did not owe the sum claimed, or any part thereof, in the manner and form alleged; and (4) that, "as to the amount of protest fees claimed for the protest of the note sued on, defendant says that the protest of the note sued on was waived by N. R. McDavid, the only indorser of said note, on the day of the maturity of said note, and before its protest by the notary." A demurrer to the fourth plea, on the ground that it "was not sufficiently explicit, in that it fails to state when said waiver was made,-whether before or after banking hours on date note became due,"-was sustained by the city court.

The term "protest," as employed in the plea, is not to be understood as the declaration which is supposed to be made at the moment of payment of commercial paper is refused on presentation at the time and place of payment stipulated in the instrument, but in its more popular significance, as embracing "those acts which are necessary to charge an indorser," namely, the drawing up in writing of a formal declaration of presentation and nonpayment, which is done after those facts have transpired, and hence after the paper is dishonored, and the giving of notices after such formal declaration has been made of the facts certified by it. Fisher v. Price, 37 Ala. 407. Giving to the word "protest" this significance, the plea is manifestly open to the construction that the waiver alleged was subsequent in point of time to the dishonor of the note, and on the rule which requires construction most adverse to the pleader, the plea...