First Nat. Bank of Montgomery v. Slaughter

98 Ala. 602

Opinion

COLEMAN, J.

The instrument sued on possesses all the requisites of commercial paper. It is made payable absolutely at a designated bank, for a sum certain, and at a defi.nite time. The fact that it contains a provision for the payment of attorney’s fees, a waiver of exémptions, or the retention of the legal title to the property for which it was grwen as security for the payment of the debt, does not impede its circulation or impair its validity as negotiable paper. Montgomery v. Crossthwaite, 90 Ala. 553; McGhee v. Imp. & Tra. Bank, 93 Ala. 192. The Circuit Court was in error in holding that the paper, the foundation of the suit, was not commercial paper.

There are other exceptions reserved, a consideration of which would lead to a reversal of the case on other grounds; but we are of opinion, that all such questions will be eliminated from the case on another trial. The holder of such paper, received in due course of trade before maturity, for a valuable consideration, without notice, is Dot affected by any defense or equities which might be available to the maker against the payee; and by the express provision of the statute of this State, “paper governed by the commercial law, negotiated before maturity, is not subject to set-off or re-coupment.” — Code of 1886, § 2684.

The evidence shows that plaintiff became the owner, in due course of trade for value, before maturity. There is no proof of notice to the plaintiff, nor of facts calculated to put him upon notice, of any defense to the note. Under such circumstances the plaintiff was entitled to a verdict.—Ross v. Drinkard, 35 Ala. 441; Johnson v. Hanover Bank, 88 Ala. 274-5; Barton v. Barton, 75 Ala. 400.

Beversed and remanded.