United Brothers of Friendship v. Huffman Auditing Co.

78 So. 864, 201 Ala. 510, 1918 Ala. LEXIS 94

• Court: Supreme Court of Alabama
• Decided: January 24, 1918
• Docket: 6 Div. 627.
• Status: Published

Opinions

SOMERVILLE, J.

The action is on several promissory notes executed by one J. S. Jackson, and by the United Brothers of Friendship, etc., a corporation, by said Jackson, as Grand Master of the state branch of said society, which was engaged in the business of insuring its members. The payee brings the action against Jackson and the society as makers of the notes.

[1] In January, 1915, pursuant to the request of one Howze who was then Grand Master of the society, the state insurance commissioner, proceeding under section 24 of the act of April 24, 1911 (Acts 1911, p. 700), directed the plaintiff to examine said society, which he did by an examination and audit of their books and records. Said act provides that:

“The expense of such examination shall be paid by the society examined, upon statement furnished hw the commissioner (italics supplied).”

No such statement has ever been made or furnished by the commissioner, but in June, 1915, the plaintiff made claim upon said Jackson, who had become Grand Master of the society, for $700 as compensation for said examination, and obtained from him the notes sued on, which were founded solely upon that consideration. One of the special defenses pleaded is that the notes sued on were without consideration.

It is clear that neither of the defendants were under any sort of obligation to pay the private demand of the plaintiff. The society was liable for the payment of such an amount as might be fixed and certified to it by the insurance commissiqner, and its authorized notes for that obligation would have been founded upon a legal consideration. But un til that certificate was furnished there was no obligation to pay for an examination not requested by the society itself.

[2] The conclusion cannot be avoided that, as defendants’ plea of want of consideration was fully sustained by the undisputed evidence, the general affirmative charge should have been given for them as requested in writing. As this conclusion would seem to dispose of the present suit, other questions raised need not be considered.

Reversed and remanded.

ANDERSON, O. J., and MAYFIELD and THOMAS, JJ., concur.