Norris v. Merchants Nat. Bank

57 So. 71, 2 Ala. App. 434, 1911 Ala. App. LEXIS 91

Opinion

WALKEB, P. J.

To the complaint counting on a promissory note alleged to have been signed' by the defendants (the appellants here) as makers, they interposed several pleas, setting up that the note as signed was delivered to the payees under an agreement that it should not take effect unless other named persons should sign the same as makers, and also alleged misrepresentations made and fraud committed by the payees in procuring the defendants’ signatures to the note. To these pleas the plaintiff filed a special replication, which alleged that the note sued on is commercial paper,, and was purchased by the plaintiff of the payees in good faith, for value, before maturity, and without any notice of any of the misrepresentations, agreements,, statements fraud, or deceit, or other defenses set up in said pleas. The demurrer to this replication was properly overruled. Authorities cited by the counsel for the appellants bearing upon the question of the right of a surety to plead, in defense of the instrument sued on, that he signed the same as surety under a condition as to the right of the principal to deliver it to the obligee,, and that it was delivered without a compliance, with such condition (White Sewing Machine Co. v. Saxon, 121 Ala. 399, 25 South. 784; Guild, Register, v. Thomas, 54 Ala. 414 25 Am. Rep. 703), have no application in favor of the maker of commercial paper as against a holder thereof who acquired it in good faith, for a: valuable consideration, before maturity, and without notice of any matter of defense to it (First National Bank of Decatur v. Johnston, 97 Ala. 655, 11 South. 690; 4 Am. & Eng. Ency. of Law [2d Ed.] 335, 337).

Affirmed.