Fenouille v. Hamilton

35 Ala. 319

• Court: Supreme Court of Alabama
• Decided: June 15, 1859
• Status: Published

Opinion

A. J. "WALKER, C. J.

That one who takes a negotiable paper, as collateral security for the payment of a pre-existing debt, is not a purchaser for value in the course of trade, is a settled doctrine in this State; and although there is a great conflict of authorities upon the point, we are not convinced that we ought to depart from our former decisions. — Boyd v. Beck, 29 Ala. 703; McKenzie v. Bank, 28 Ala. 606 ; Andrews v. McCoy, 8 Ala. 920; Bank v. Hall, 6 Ala. 639; Cullum v. Bank, 4 Ala. 21.

In this case, there was no other consideration for the transfer of the note to the defendant than the security of the pre-exi&tiDg indebtedness of the defendant’s endorser. The fact that the defendant may have been led to grant indulgence, or forbear to enforce his remedies for the collection of his debts, does not prove that such indulgence or forbearance was an element of the contract, or the consideration upon which it was made. If there was any forbearance by the defendant, it was a voluntary act, to which he may have been persuaded by the collateral security, and may have resulted from a consciousness of security; but such forbearance was not the result of contract, and is not shown to have been the consideration of it.

Upon the facts before us, the court below ought to have rendered judgment for the plaintiff.

Judgment reversed, and cause remanded.