Neill v. Central Nat. Bank

Supreme Court of Alabama

Neill v. Central Nat. Bank

78 So. 73, 201 Ala. 297, 1917 Ala. LEXIS 5

Supreme Court of Alabama·Decided November 15, 1917·No. 8 Div. 60.·Published·Cited by 3 cases

Opinion

ANDERSON, C. J.

[1] Whether the complaint was or was not sufficient before amendment, the plaintiff amended same so as to meet any meritorious ground of the demurrer. Appellant’s counsel insist, however, in argument, that the count as amended does not state when the plaintiff became the owner, whether at the time of the amendment or the bringing of the suit. The amendment relates back to the original complaint, nothing to the contrary appearing. Moreover, no *298 demurrer was Interposed to the complaint after the amendment.

[2] The trial court did not commit reversible error in sustaining the demurrer to the defendant’s rejoinders, as the facts there set up, if available at all, were provable under the general rejoinder.

[3] The issuance of the certificate of deposit was sufficient consideration to constitute plaintiff! a bona fide purchaser. Elmore County Bank v. Avant, 189 Ala. 418, 66 South. 509.

[4] It is insisted by the appellant’s counsel that the trial court erred in giving the general charge for the plaintiff, for the reason that the correspondence between the bank’s cashier and Sample was sufficient to afford an inference that defendant bank was put upon inquiry that the maker had a defense to the note.

“To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity * * * or knowledge of such facts that his action in taking the instrument amounted to bad faith.” Code, § 5011; Elmore Bank v. Avant, supra.

The correspondence between the cashier and Sample did not disclose anything which even indicated any infirmity in the note in question or .which showed bad faith upon this bank in purchasing the same without making inquiry of the maker. The correspondence could not have related to the note in question, or to a batch of notes to which it belonged and with which it was purchased, as the Sample note was dated May 13th, the letters May 23d and 25th, and the note in question was not executed until June 19th.

The judgment of the circuit court is affirmed.

Affirmed.

MAXFIELD, SOMERVILLE, and THOMAS, JJ., concur.

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ANDERSON, C. J.

[1] Whether the complaint was or was not sufficient before amendment, the plaintiff amended same so as to meet any meritorious ground of the demurrer. Appellant’s counsel insist, however, in argument, that the count as amended does not state when the plaintiff became the owner, whether at the time of the amendment or the bringing of the suit. The amendment relates back to the original complaint, nothing to the contrary appearing. Moreover, no *298 demurrer was Interposed to the complaint after the amendment.

[2] The trial court did not commit reversible error in sustaining the demurrer to the defendant’s rejoinders, as the facts there set up, if available at all, were provable under the general rejoinder.

[3] The issuance of the certificate of deposit was sufficient consideration to constitute plaintiff! a bona fide purchaser. Elmore County Bank v. Avant, 189 Ala. 418, 66 South. 509.

[4] It is insisted by the appellant’s counsel that the trial court erred in giving the general charge for the plaintiff, for the reason that the correspondence between the bank’s cashier and Sample was sufficient to afford an inference that defendant bank was put upon inquiry that the maker had a defense to the note.

“To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity * * * or knowledge of such facts that his action in taking the instrument amounted to bad faith.” Code, § 5011; Elmore Bank v. Avant, supra.

The correspondence between the cashier and Sample did not disclose anything which even indicated any infirmity in the note in question or .which showed bad faith upon this bank in purchasing the same without making inquiry of the maker. The correspondence could not have related to the note in question, or to a batch of notes to which it belonged and with which it was purchased, as the Sample note was dated May 13th, the letters May 23d and 25th, and the note in question was not executed until June 19th.

The judgment of the circuit court is affirmed.

Affirmed.

MAXFIELD, SOMERVILLE, and THOMAS, JJ., concur.

Neill v. Central Nat. Bank, 78 So. 73, 201 Ala. 297, 1917 Ala. LEXIS 5 (Ala. 1917).

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