Zadek v. Forcheimer

• Decision Date: 15 January 1918
• Docket Number: 1 Div. 253
• Parties: ZADEK v. FORCHEIMER.
• Court: Alabama Court of Appeals

77 So. 941

16 Ala.App. 347

ZADEK v. FORCHEIMER.

1 Div. 253

Court of Appeals of Alabama

January 15, 1918

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Assumpsit by Louis Forcheimer against Elizabeth G. Zadek and J.M Ponder. Judgment for plaintiff, and defendant Zadek appeals. Reversed and rendered.

The action was upon what is commonly called a collateral promissory note made by J. M. Ponder, and indorsed by Elizabeth Zadek. Before trial was entered into Ponder was stricken as a party defendant, and the case proceeded against the other defendant. Plea 1 is that defendant Zadek indorsed the note sued on after it had been fully executed, and had become a complete contract between plaintiff and J.M. Ponder and that she indorsed same without any new or additional consideration received by her therefor. The other facts sufficiently appear.

Frederick G. Bromberg, of Mobile, for appellant.

Herbert U. Feibelman and Francis J. Inge, both of Mobile, for appellee.

BROWN P.J.

The appellee in brief concedes that under appellant's plea 1 "the want of consideration was sufficiently set forth," but contends that "no proof in support thereof was submitted."

Appellee by filing a special replication to this plea without filing a general replication or joinder of issues thereon, confessed the plea and relieved the defendant of the burden of offering proof to sustain it. Alabama National Bank v. Halsey, 109 Ala. 196, 19 So. 522.

Therefore the plaintiff was not entitled to a judgment unless he proved his special replication to this plea. Alabama National Bank v. Halsey, supra; Woodall & Sons v. People's National Bank of Leesburg, Va., 153 Ala. 576, 45 So. 194.

So the question is, Has the plaintiff met this burden? The plaintiff's replication avers, "In answer to plea 1 the plaintiff says that at the time of the execution of said note on, to wit, June 13, 1915, and at the time the defendant, Elizabeth G. Zadek, indorsed it, it contained the stipulation that if from any cause whatever the securities pledged by the said J.M. Ponder, to wit, seven shares of City Bank & Trust Company stock, should cease to be satisfactory collateral to the owner of said note, to wit, plaintiff, the said J.M. Ponder agreed to deposit additional security from time to time as demanded. Plaintiff further says that before the maturity of said note the said collateral security ceased to be satisfactory collateral to the plaintiff, and he demanded additional security under and by virtue of said stipulation, and in compliance with said agreement the said J.M. Ponder offered the indorsement of the defendant, Elizabeth G. Zadek, which was accepted. Plaintiff further says that then and there the defendant, Elizabeth G. Zadek, indorsed the said note, and that said indorsement was in compliance with said agreement and for the original consideration of the note.

The...