Planters' Chemical & Oil Co. v. Morris

Alabama Court of Appeals

Planters' Chemical & Oil Co. v. Morris

100 So. 200, 19 Ala. App. 670, 1924 Ala. App. LEXIS 107

CourtAlabama Court of Appeals

DecidedMay 20, 1924

Docket7 Div. 992.

StatusPublished

This text of 100 So. 200 (Planters' Chemical & Oil Co. v. Morris) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Planters' Chemical & Oil Co. v. Morris, 100 So. 200, 19 Ala. App. 670, 1924 Ala. App. LEXIS 107 (Ala. Ct. App. 1924).

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Opinion

SAMFORD, J.

The complaint was in two counts declaring on a promissory note executed on the 4th day of May, 1920, and payable on the 1st clay of October. The complaint contained an allegation that defendant had waived his claim to exemption. There was a plea of non est factum.

Plaintiff introduced evidence tending to prove the consideration, and witness testified, defendant not being able- to sign his name, that, at defendant’s request, witness signed defendant’s name and defendant made his mark. The note was then introduced in evidence, and contained, besides the promise to pay, a waiver of exemptions and a mortgage on certain personal property. This in-Ms strument was signed Z. X. T. Morris, and had mark no attesting witness. It was shown that Morris could neither read nor write, and there was no evidence that the payee or its agent signed the note. The court gave at the request of defendant, Morris, the affirmative charge as to him and this action is assigned as error.

Under the evidence offered by plaintiff, Morris was primarily liable for the fertilizer for which the note was given, and, even if the signing of the note in the manner'testified to did not bind Morris as to the waiver of exemptions and was not valid as a mortgage, he would be liable on the promise to pay. Brown v. Bamberger, Bloom & Co., 110 Ala. 342-355, 20 South. 114; Penton v. Williams, 150 Ala. 153, 43 South. 211.

Eliminating that part of the instrument, ineffective by reason of the statute, there is still left the promissory note of Morris. Under the common law the execution of an instrument by mark is sufficient, and we kiiow of no statute changing the rule. McGowan v. Collins, 154 Ala. 299, 46 South. 228; Penton v. Williams, 150 Ala. 153, 43 South. 211; Jackson v. Tribble, 156 Ala. 480, 47 South. 310.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

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SAMFORD, J.

The complaint was in two counts declaring on a promissory note executed on the 4th day of May, 1920, and payable on the 1st clay of October. The complaint contained an allegation that defendant had waived his claim to exemption. There was a plea of non est factum.

Plaintiff introduced evidence tending to prove the consideration, and witness testified, defendant not being able- to sign his name, that, at defendant’s request, witness signed defendant’s name and defendant made his mark. The note was then introduced in evidence, and contained, besides the promise to pay, a waiver of exemptions and a mortgage on certain personal property. This in-Ms strument was signed Z. X. T. Morris, and had mark no attesting witness. It was shown that Morris could neither read nor write, and there was no evidence that the payee or its agent signed the note. The court gave at the request of defendant, Morris, the affirmative charge as to him and this action is assigned as error.

Under the evidence offered by plaintiff, Morris was primarily liable for the fertilizer for which the note was given, and, even if the signing of the note in the manner'testified to did not bind Morris as to the waiver of exemptions and was not valid as a mortgage, he would be liable on the promise to pay. Brown v. Bamberger, Bloom & Co., 110 Ala. 342-355, 20 South. 114; Penton v. Williams, 150 Ala. 153, 43 South. 211.

Eliminating that part of the instrument, ineffective by reason of the statute, there is still left the promissory note of Morris. Under the common law the execution of an instrument by mark is sufficient, and we kiiow of no statute changing the rule. McGowan v. Collins, 154 Ala. 299, 46 South. 228; Penton v. Williams, 150 Ala. 153, 43 South. 211; Jackson v. Tribble, 156 Ala. 480, 47 South. 310.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

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100 So. 200, 19 Ala. App. 670, 1924 Ala. App. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/planters-chemical-oil-co-v-morris-alactapp-1924.

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