Cotten v. Bradley

38 Ala. 506

• Court: Supreme Court of Alabama
• Decided: January 15, 1863
• Status: Published

Opinion

A. J. WALKER, C. J.

The payment of a, bill of exchange, by an endorser to his endorsee, does not extinguish the bill, as between the endorser, who makes the payment, and the parties who stand before him in the order of liability. — Story on Bills, 541, § 422; Byles on Bills, m. pp. 174, 175, 176, 184; Chitty on Bills, m. p. 424, note 3 ; Kirksey v. Bates, 1 Ala. 303; Edwards on Bills, 534; Earbee v. Wolfe & Clark, 1 Ala. 366 ; Wallace v. Branch Bank of Mobile, 1 Ala. 565; Herndon v. Taylor, 6 Ala. 461; United; States v. Barker, 1 Paine, 161; Picquet v. Curtis, 1 Sumner, 478 ; Bell v. Morehead, 1 Marsh, 158; 3 Kent, m. p. 89.

Notwithstanding the rendition of judgment against Dillard & Ledbetter, Bradley, the subsequent endorser, remained liable to his endorsee, and had a right to pay off the bill, to take it up, and to maintain an action against any of the prior parties. Instead of merely paying the bill of exchange, he satisfied a judgment which had been rendered against his endorser, in favor of his endorsee. This payment necessarily involved a payment of the bill, upon which the judgment was founded. We cannot perceive any reason why Bradley should be deprived of his right of action against the prior parties, which would result from his paying off and taking up the bill, because he has, besides taking up the bill, satisfied the judgment. If the payment had been made by Dillard & Ledbetter, Bradley’s endorsers, the property of the bill would have enured to them ; but the payment is not by them, either in fact or by intendment of law, because it was .made upon a judgment against them.

This is not the case of one man seeking by his voluntary act to make another his debtor. It is a legal right of an endorser to pay off and take up the bill; and thereupon he becomes the owner, and invested with a right of action against the respective parties standing before him, as completely as he was before he endorsed the paper. Having taken up the bill, he proceeds upon it, and does not sue as assignee of the subsequent party to whom he paid it. Dillard & Ledbetter were discharged from the judgment against them, by Bradley’s payment of it; but we apprehend they were not discharged from liability upon the bill to their endorsee. But, if they were so discharged, it would not affect the liability of the antecedent parties. The discharge of a subsequent, does not discharge a prior party to a bill. — Byles on Bills, 190, 187; Chitty on Bills, m. p. 418. We think the argument for the appellant, that the plaintiff, upon the facts stated in the bill of exceptions, has no light of action, is altogether untenable.

[2.] We cannot discover that the court erred in striking out the plea of pendency of a former suit. The plea is not set out; and in the absence of all information as to what it contained, we must presume that it was of such character as justified the action of the court.

[3.] It is objected, that the court, in a charge to the jury, assumed the credibility of the parol evidence. We do not understand the bill .of exceptions to show any charge by the court. It says, that the court decided certain things; but those decisions may have been announced incidentally during the trial, and not given as authoritative statements of the law to the jury. We cannot say that the court has given any erroneous charge to the jury, when it does not appear that the decision was given as a charge to the jury, or intended for their hearing. — Greene v. Sims, 16 Ala. 541 ; Phillips v. Beene, ib. 720 ; Morrow & Nelson v. Parkman & Weaver, 14 Ala. 769.