Manson v. Sutterer

77 So. 375, 201 Ala. 81, 1917 Ala. LEXIS 69

• Court: Supreme Court of Alabama
• Decided: December 20, 1917
• Docket: 6 Div. 575.
• Status: Published

Opinions

Among other defenses interposed, the defendant pleaded that plaintiff was not the owner of the note sued upon, and this was one of the issues presented to the jury for determination. This plea put in issue the genuineness of the indorsement of the note to the plaintiff. The plea of payment bore no relation to this plea. Agee v. Medlock, 25 Ala. 281. The plaintiff requested, in writing, affirmative instructions with proper hypothesis upon this issue, and the refusal of these charges is assigned as error. The evidence was without dispute that the note in question had been duly indorsed and delivered by the payee, the German Bank of Cullman, to the Hanover National Bank, as collateral security, and by the latter bank duly sold as authorized by the payee, and properly transferred to the plaintiff, and that plaintiff therefore held the legal title to said note at the time of the institution of this suit. The insistence of defendant seems to be that some of the evidence tends to show that the Hanover National Bank is, in fact, the beneficial owner of the note, interested in the proceeds thereof, although the legal title may be in the plaintiff.

The note here sued upon is a commercial paper, and comes within that provision of section 2489, Code 1907, requiring suits on such instruments to "be instituted" in the name of the person having "legal title." As said by this court, speaking to this provision of the statute above cited:

" 'The legal title' to such an obligation as is here declared on is a distinct concept from the right to the proceeds thereof. One may be the holder of the 'legal title,' though the proceeds belong to another." Coats v. Mutual Alliance Trust Co., 174 Ala. 565, 56 So. 915.

To like effect, see Carmelich v. Mims, 88 Ala. 335, 6 So. 913; Berney v. Steiner Bros., 108 Ala. 111, 19 So. 806, 54 Am. St. Rep. 172.

Under the undisputed evidence in the case, therefore, the plaintiff was entitled to the affirmative charge with hypothesis as requested as to this issue which was set up by plea No. 11. The record discloses, as is also indicated by brief of counsel for appellee, that this was an issue vigorously contested in the court below before the jury, and very probably had a strong influence with it. Under the evidence, this issue, in the opinion of the writer, should have been eliminated from the jury's consideration. Under Agee v. Medlock, supra, this plea put in issue only the genuineness of the indorsement of the note to the plaintiff, and the plea of payment bore no relation to this plea, and could not in any event be held in any way to embrace the substance of plea No. 11. I am therefore unable to agree to the opinion of Justice McCLELLAN, and think that the cause should be reversed for the refusal of the affirmative charge as to plea No. 11, and thus have removed that issue from the case.

The plaintiff filed a general replication to defendant's pleas, expressly averring that the "facts set up in said pleas are untrue, and he takes issue upon the same." Not only was this true, but each of the replications expressly averred the ownership of the note in the plaintiff; that plaintiff "became the holder in due course." To say that under this situation the plaintiff should, under the rule given application by Justice MAYFIELD, be said to have confessed that he was not the owner of the note, is, in my opinion, extending the technical rule of pleading therein mentioned far beyond its legitimate scope, and is entirely too finely drawn for practical purposes. I am therefore unable to agree with the conclusion reached by Justice MAYFIELD as disclosed by his separate opinion.

In these views Chief Justice ANDERSON and Justice SOMERVILLE concur, and entertain the view that the cause should be reversed. Upon the other questions herein discussed there is no difference of opinion.

The defendant insisted that he had paid the note to the German Bank of Cullman long prior to the time when the plaintiff acquired the same, and that the German Bank of Cullman was at that time the agent of the Hanover National Bank, with authority to collect the note. The evidence upon this issue was somewhat similar to that presented in the case of Vogler v. Manson, 76 So. 117¹ — a suit growing out of the same bank failure — and we think the same was sufficient for submission to the jury upon this issue.

As to whether or not the authority to collect the collateral was revoked by the Hanover National Bank in the letter of October 3d (referred to in the statement of the case), was left by the court to the determination of the jury, and upon a consideration of the same we are not persuaded that the plaintiff can complain of the refusal of the court to affirmatively instruct the jury that such letter did in fact revoke such authority. Nor do we find anything in the ruling of the court on demurrer to rejoinder No. 3, calling for a reversal of the cause. The only assignment of demurrer insisted upon is that the rejoinder contained a plea of payment which had been interposed, and, whether this was true or not, clearly the overruling of this assignment of demurrer could not possibly have injuriously affected the plaintiff.

The motion to strike the bill of exceptions has been duly considered, and we are persuaded it is without merit, nor do we think it needs separate treatment here. The motion is accordingly denied.

It results from the views of the majority that the judgment must affirmed.

Affirmed.

McCLELLAN, MAYFIELD, SAYRE, and THOMAS, JJ., concur in result of affirmance. ANDERSON, C. J., and SOMERVILLE and GARDNER, JJ., dissent.

¹ 200 Ala. 351.