Brown v. Johnston Bros.

135 Ala. 608

• Court: Supreme Court of Alabama
• Decided: November 15, 1902
• Status: Published

Opinion

DOWDELL, J.

The plaintiffs were, the beneficial owners of the note sued on, and, under section 28, Code, 1896, the suit was property prosecuted in their name,as the party realty interested. After having settled with their creditors for whose benefit they had made an assignment to G. B. Johnston, as assignee, it was not necessary to authorize plaintiffs to maintain suit in their own names that the assignee should make Avrit-ten assignment or transfer of the note hack ‘to the plaintiffs; a mere delivery being sufficient for the purpose. The note was not transferred by formal indorsement to the assignee, but went into his hands with other assets under the general assignment.

There was no error in overruling defendant’s objection to the filing of replications by plaintiffs to plea “D,” nor in overruling defendant’s demurrer to the replications. The plea set up' the assignment by the plaintiffs for the purpose of showing that the plaintiffs Avere not OAvners of the note sued on. The replications averred a settlement by plaintiffs Avitb their creditors for whose benefit the assignment had been made, and a redel'ivery of the note to them by the assignee, and all before the commencement of the suit. This Avas a complete ansAver to the plea.

The rejoinder of the defendant to the replication Avas insufficient in law, as a formal indorsement of the note, or a Avritten transfer of the same by the assignee back to the plaintiffs was not necessary to reinvest them with the beneficial OAvnership of the note. The court, therefore, properly sustained the demurrer to the rejoinder.

There was no error in admitting the note sued on in evidence without preliminary proof of its execution. The special plea of non c.si factum setting up a material alteration of the note admitted its execution by the defendant.—Barclift v. Treece, 77 Ala. 528.

Ho injury resulted to the defendant in overruling his objection to the question asked the witness Bob -Jackson, “Did you have a Avritten contract with the defendant for the year 1894?” even if it was error, as his only response was that he “did not remember whether lie had or not.”

The remarks of counsel in argument to the jury excepted to, were but the expression of counsel’s opinion as to the effect of the special plea of non est factum, and not the statement of a fact not in evidence and prejudicial to the defendant, such as calls for the court’s interference hv arresting the argument. See Lide v. State, 133 Ala. 43; 31 So. Rep. 953.

There was no error in refusing written charge No. 2, requested by the defendant. The note was -prima facie evidence of sufficient consideration, and the burden of proof was on the defendant to show want or failure of consideration.—Martin v. Foster, 83 Ala. 213. Moreover, there was no plea setting up want or failure of consideration.

We have considered all of the assignments of error insisted on in argument. We find no reversible error in the record, and the judgment will be affirmed.