Phillips v. Sellers

Supreme Court of Alabama

Phillips v. Sellers

42 Ala. 658

CourtSupreme Court of Alabama

DecidedJune 15, 1868

StatusPublished

Cited by8 cases

This text of 42 Ala. 658 (Phillips v. Sellers) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Phillips v. Sellers, 42 Ala. 658 (Ala. 1868).

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Opinion

BYRD, J.

Action, assumpsit — plea, general issue. The Code, (§ 1838,) authorizes an assignee, by endorsement of a contract for the performance of any act or duty, to bring. an action thereon, (Henly v. Bush, 33 Ala. 636); but when not endorsed, it requires the action to be brought “ in the name of the person having the legal title.” — § 2523. In this case, the complaint does not aver an endorsement of the contract by the payee to the plaintiff; for we do not think that the averment, “ said agreement being at the time of maturity, and now the property of plaintiff,” is equivalent to an averment, that it was assigned by endorsement to the plaintiff; though such an averment of the ownership of an instrument payable in money, has been held to be good in a complaint, for the reason that by section 2523 of the Code, “ the party really interested” therein is authorized to sue. A demurrer, therefore, would have been sustained if interposed on this ground, under the authority of the cases of Skinner v. Bedell’s Adm’r, 32 Ala. 44; Henly v. Bush, supra.

But when the defendant fails to demur, and goes to trial on the general issue, can he avail himself on the trial of this defence? We think not. Having taken issue on the complaint, and there being no averment of an endorsement, the plaintiff can make out the case made by the complaint without proving an endorsement of the contract, and the court below, therefore, did not err in overruling the objection of defendant to the introduction of the instrument sued upon, on the grounds stated in the bill of exceptions.— Walker v. Mobile Insurance Co., 31 Ala. 529; Harris v. Plant & Co., 31 Ala. 639.

And for the same reasons, the court did not err in the charge given, and in the refusal to give the one asked, so [662]*662far as any ground of error is insisted on in the brief of counsel. — Howard v. Coleman, 36 Ala. 721.

The judgment, being upon verdict, and without any objection to the complaint in the court below, comes within the saving influence of section 2811 of the Code; and it would also be sustained on common-law principles.

Affirmed.

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BYRD, J.

Action, assumpsit — plea, general issue. The Code, (§ 1838,) authorizes an assignee, by endorsement of a contract for the performance of any act or duty, to bring. an action thereon, (Henly v. Bush, 33 Ala. 636); but when not endorsed, it requires the action to be brought “ in the name of the person having the legal title.” — § 2523. In this case, the complaint does not aver an endorsement of the contract by the payee to the plaintiff; for we do not think that the averment, “ said agreement being at the time of maturity, and now the property of plaintiff,” is equivalent to an averment, that it was assigned by endorsement to the plaintiff; though such an averment of the ownership of an instrument payable in money, has been held to be good in a complaint, for the reason that by section 2523 of the Code, “ the party really interested” therein is authorized to sue. A demurrer, therefore, would have been sustained if interposed on this ground, under the authority of the cases of Skinner v. Bedell’s Adm’r, 32 Ala. 44; Henly v. Bush, supra.

But when the defendant fails to demur, and goes to trial on the general issue, can he avail himself on the trial of this defence? We think not. Having taken issue on the complaint, and there being no averment of an endorsement, the plaintiff can make out the case made by the complaint without proving an endorsement of the contract, and the court below, therefore, did not err in overruling the objection of defendant to the introduction of the instrument sued upon, on the grounds stated in the bill of exceptions.— Walker v. Mobile Insurance Co., 31 Ala. 529; Harris v. Plant & Co., 31 Ala. 639.

And for the same reasons, the court did not err in the charge given, and in the refusal to give the one asked, so [662]*662far as any ground of error is insisted on in the brief of counsel. — Howard v. Coleman, 36 Ala. 721.

The judgment, being upon verdict, and without any objection to the complaint in the court below, comes within the saving influence of section 2811 of the Code; and it would also be sustained on common-law principles.

Affirmed.

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42 Ala. 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-sellers-ala-1868.

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