Young v. Perry

• Citation: 187 Ala. 122,65 So. 817
• Decision Date: 11 June 1914
• Docket Number: 719
• Parties: YOUNG v. PERRY.
• Court: Supreme Court of Alabama

65 So. 817

187 Ala. 122

YOUNG v. PERRY.

No. 719

Supreme Court of Alabama

June 11, 1914

Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.

Action by Frank M. Perry against George Young and another. From a judgment for plaintiff, defendant named appeals. Affirmed.

Paul Hodges and A.A. Williams, both of Florence, for appellant.

George P. Jones, of Florence, for appellee.

MAYFIELD J.

Appellee as payee, brought suit on the following note:

"5000.00. Florence, Alabama, Oct. 15, 1910.

"Ninety days or sooner after date, for value received we promise to pay to F.M. Perry or order five thousand and 00/100 dollars, payable at the First National Bank, Florence Alabama, with all cost of collection, including a reasonable attorney's or collector's fee in case of nonpayment at maturity.

"All rights of exemption under the laws of Alabama waived as to the maker and each indorser of this note, with interest at twelve per cent. per annum.

"North Alabama Construction Co.,

"By Jas. L. Brock, Treasurer.

"George Young.

"Due Jan. 15, 1911."

The corporation interposed no defense to the action. Young appellant here, interposed the plea of usury, which was confessed, and also interposed the following plea:

"Comes the defendant, George Young, and for answer to the complaint filed against him in this cause says that the note sued on was signed by him as surety for North Alabama Construction Company, a corporation; that at the time he signed said note it purported to have been executed by said corporation, and that he understood the said note to have been duly executed by said corporation and to be a valid and binding obligation of said corporation; that he signed said note as surety and not otherwise, which fact was known to plaintiff; that in fact said note was never executed by said corporation, or by any one having authority to execute the same for and on behalf of said corporation, and this defendant pleads the same in bar of this action. George Young.

"Paul Hodges,

"A.A. Williams,

"Atty. for Deft. Geo. Young.

"Sworn to and subscribed before me this the 8th day of March, 1912.

"Jno. L. McClure, Clerk."

The plaintiff demurred to this plea, on the ground that the defense of non est factum, attempted to be raised by the plea, was personal to the corporation, which made no defense to the action, and that the defense could not be pleaded by the defendant Young, who was, on the face of the paper, a joint and several maker of the note. The court sustained the demurrer, and judgment went against the defendants, from which judgment the defendant Young appeals, assigning, as error, the sustaining of the plaintiff's demurrer to his plea.

The sole question presented or insisted upon by appellant is whether or not this plea set up any defense to the action as against the defendant, Young, and which was availing to him under this plea. There is no claim that any fraud was practiced by, or against, any one. The sole claim is that the person who signed the corporation's name to the note had no authority to so bind the corporation; the insistence of appellant being that if the corporation was not bound, then appellant was not bound, because in fact he was surety, and not a joint and several maker as the note purports on its face to make him. We are of the opinion that the trial court ruled correctly. The plea presented no defense available to appellant. One joint and several maker of a note, although, as between the parties, the one is surety for the other, cannot defend by setting up as a defense that the other did not so sign the note as to be bound, when the other party does not set up such defense. The plea attempted to set up a defense which was purely personal to the corporation, and not availing to appellant. If the plea had set up facts showing that a fraud was practiced upon him, in thus obtaining his signature, and that his signature was obtained by the fraud of falsely representing that the corporation had signed the note, when in fact it had not done so, then the defense would be availing to him as the party so defrauded. But that is not the case presented; the plea does not attempt to set up such a defense. If the contract sued on had been a mere guaranty, or a bond such as an attachment bond, etc., providing, as a part of the surety's contract, that the principal was bound, and, if the principal failed to perform, that then the surety or guarantor should be bound, the rule of law might be different. But as to this we do not now decide, or intimate an opinion. Such, however, is not this case. The action is on a promissory note signed by two parties. Such execution on the face of the paper and according to the contract makes each signer jointly and severally liable to the payee. It is true that as a matter of fact one may be the surety of the other, and for some purposes and some defenses would be treated as a surety; but he is not entitled to make the defense attempted by the plea in question. The authorities and reason are all the other way.

Mr. Randolph, in his work on Commercial Paper (volume 2, §§ 913, 915), says:

"A surety who signs the note after the names of other cosureties admits, although he does not warrant, the genuineness of their signatures; and, if the principal's name is forged, without the surety's knowledge, and without fraud on the holder's part, it will be no defense to the surety. So, the surety cannot set up that

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