GARDNER, J.
[1]
Appellee, plaintiff in the court below, brought suit upon a bill of exchange in Code form, and to the complaint, as framed, no demurrer was interposed, as it was entirely sufficient. The defendant interposed special pleas, setting up that the acceptance was conditional (the condition being quoted in the statement of the case), and that the condition had not been complied with, in that the collection has never been made by the defendant from the Italian government as contemplated in the conditional acceptance, or, as amended, “to any one authorized by the Gulf Export Company to receive the money.” The amendment to these pleas met the objections first interposed to original pleas 2 and 3, and we are of the opinion that these pleas, as last amended, set up a good defense, and were not subject to the demurrer interposed thereto.
[2]
The condition does not appear on its face to be void for uncertainty, as contended by counsel for appellee, whatever nmy be said as to any ambiguity therein subject to explanation by proper proof. But it is insisted, conceding the sufficiency of these pleas, the ruling of the court in sustaining the demurrer thereto was error without injury, for that the matters therein set up were available to the defendant upon the plea of general issue.
[3-5]
The plaintiff brought suit as upon a negotiable instrument, but the bill of exchange as a matter of fact was accepted conditionally, and was therefore a nonnegotiable instrument. The condition should have been set out in the complaint, and a compliance therewith alleged by the plaintiff. Caulfield v. Finnegan, 114 Ala. 39, 21 South. 484; 2 Mayf. 460; 8 Corp. Jur. 865, 866. Had the plaintiff complied with this rule, the defense sought to be interposed by the pleas could have been presented under the general issue; but, not having done so, the defendant set up this defense by special pleas, and the plaintiff is not in position to now say the defense could have otherwise been presented.
There are a few other questions presented by the record, which are closely allied to the one just treated, and therefore do not need separate consideration.
For the error of the court below in sustaining the demurrer to the special pleas as amended, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.
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