Wimberly v. Windham

• Decision Date: 21 June 1894
• Parties: WIMBERLY ET AL. v. WINDHAM.
• Court: Alabama Supreme Court

16 So. 23

104 Ala. 409

WIMBERLY ET AL. v. WINDHAM.

Supreme Court of Alabama

June 21, 1894

Appeal from circuit court, Butler county; John R. Tyson, Judge.

Action by A. B. Windham against H. T. Wimberly and another. There was a judgment for plaintiff, and defendants appeal. Affirmed.

A. B Windham, the appellee, brought the present action against H T. Wimberly and W. J. Nicholson, on February 12, 1890. The complaint counted upon a promissory note made by the defendants to George W. Scott & Co., which said note had been duly transferred and assigned to the plaintiff. When the cause was called for trial, the defendants moved the court for a continuance, on account of the absence of the defendant Nicholson, who also was claimed to be a material witness for the defendant H. T. Wimberly; the defendants' counsel stating to the court that he was informed that Nicholson was detained at home on account of the sickness ; of his (Nicholson's) wife, but no proof was offered or made of this fact. It was also made to appear to the court that Nicholson had not been subpoenaed as a witness for the defendant Wimberly. The court overruled the motion for a continuance, and the defendant duly excepted. The bookkeeper of H. T. Wimberly, upon being examined as a witness testified that the signature of H. T. Wimberly to the bond or promissory note which was introduced in evidence was written by M. W. Wimberly. To this testimony the defendants objected on the grounds (1) that it was illegal; (2) because M. W Wimberly was not shown to be authorized to sign the name of H. T. Wimberly to said paper. The court overruled the said objection, and the defendants duly excepted. The plaintiff then offered in evidence the power of attorney of H. T Wimberly to M. W. Wimberly, which is copied in the opinion. The defendants also excepted to the testimony introduced in behalf of the plaintiff to the effect that M. W. Wimberly, as agent of H. T. Wimberly, had received cotton raised by Nicholson, upon which George W. Scott claimed a lien. This objection was overruled, and the plaintiff duly excepted. In its general charge to the jury, the court instructed them, among other things, as follows: "If they find from the evidence that the consideration for M. W. Wimberly's signing H. T. Wimberly's name to the bond in suit was to extinguish or settle a lien claimed by Scott & Co. on the cotton received by him as the agent of H. T. Wimberly from Nicholson, then M. W. Wimberly had the authority to bind him by signing his name to said bond, and he would be a principal on said bond, and not a security for said Nicholson, and the plaintiff would be entitled to a verdict as against him [Wimberly]." The defendants duly excepted to this portion of the court's general charge, and also separately excepted to the court's giving to the jury, at the request of the plaintiff, the following charges: (1) "If the jury believe from the evidence that the consideration for Wimberly's signing the note in question was to extinguish or settle a lien or a claim on the cotton he had received from Nicholson during the fall of 1887, then the plaintiff, Windham, is entitled to...