Carrington v. Odom

Carrington v. Odom. Action on Promissory Note. 1. Negotiable note; effect of words designating place. — Where a promissory note states that the makers promise to pay a certain sum “at the Jasper Trust Company’s office,” it is not probable that the parties in using these words intended to state the unimportant fact of where the consideration was received. To- have any material use in expressing the terms of the contract they could only have reference to the place where the note was to be paid and must be given effect as designating that place. So construed the note is payable at a . place certain within the requirements of the statute defining negotiable instruments and is subject to the rules governing commercial paper. 2. Negotiable note; indorsement of %ohen made to be regular. — The regular indorsement of a negotiable note, which imports a contingent liability of the indorser, and which is not variable in construction by parol evidence, occurs only after its full execution and delivery to the payee. 3. Same; must be presented and notice of dishonor given. — -To bind the indorsers, a negotiable note regularly indorsed must be -presented at maturity at the designated place of payment and notice of dishonor given in a reasonable time, unless excuse or good reason for omission be shown. 4. Irregular indorsement; obligation and effect of. — The obligations imported by the irregular indorsement of a negotiable note, such as arise when the indorsement is made before delivery, are of the same kind and dependent on the same conditions in respect of presentment and notice as where the indorsement is made after delivery; but it does not prevent the holder of the note from showing by allegation and proof that one writing his name in blank on the back of a note at its inception did so in execution of the note as a maker, since it is certain that a note may be signed upon its back. 5. Negotiable note; averment of due and legal presentment sufficient. — The averment in a complaint of the due and legal presentment for payment of a negotiable note to the makers, is equivalent'to an averment that the presentation was at the place designated in the note; that being the place agreed on where due and legal presentment could be made, 6. Pleas to whole complaint; when not sufficient. — ’Where pleas are interposed to the complaint as a whole, they fail to answer the whole complaint if they are without application to the common counts contained in the complaint. 7. Non-claims; statute of sufficiently complied with by presentation to one executor. — Where there are two or more executors of an estate, the presentation of a claim against the estate within the prescribed time to one of them, is a sufficient compliance with the statute of non-claims; and a plea which sets up that a claim was not presented to both or all of the executors is subject to demurrer. 8. Protest; certificate of evidence of facts contained in it. — The law, Code, § 3030, authorizes protest of negotiable note even though not necessary to bind the. endorser thereof, and the certificate of protest is by the statute evidence of the facts contained in it. 9. Negotiable note; unimportant that it was not presented to bank; when. — The fact that a negotiable note was at the time of its maturity in the hands of the cashier of the bank at which it was payable, and the further fact that the cashier was a notary public and as such protested said note and issued the regular certificate'oí presentment at payee’s request, are sufficient to raise the inference both of the cashier’s agency to receive payment and that the note was at the bank at maturity. It is unimportant that the note was not presented to the bank. 10. Dishonor; notice of by mail. — Where the payee of a negotiable note and the indorsers reside in different towns it is permissible for the notary to give notice of dishonor through the mails. 11. Same; notice of to one executor sufficient. — The notice of dishonor of a negotiable note given to one of the executors of an indorser is sufficient to bind the testator’s estate. 12. Same; not necessary to use particular words in giving notice of. It is unimportant that the word “as” or its equivalent is not used before the word executor in addressing a notice of dishonor to him; the object of the notice being simply to convey information of dishonor, any words which had that effect are sufficient. i. 13. Judgment; when merely irregular. — The failure to enter a judgment rendered against executors as such so as to be leviable de bonis iestatoris is an irregularity, but it amounts only to a clerical error which does not authorize a reversal. Appeal from Walker Circuit Court. Tried before E. H. Oabaniss_, Esqev Special Judge. Action by James Odom, Sr., against J. B. Carrington and Mrs. M. A. Gamble as tlie executors of F. A. Gamble. Tlie evidence was without conflict to the effect that the plaintiff loaned to the Jasper Stone & Quarry Company an amount of money and received from the company a promissory note; that at the time of the execution of the note and before its delivery the testator of the defendants signed his name across the back of it; that the note was a promise to pay at the “Jasper Trust Company’s office, Jasper, Ala.,” and Avas put by the plaintiff into the hands of J. A. Gravlee, who Avas the cashier of the said banking company; that Avlien the note matured the Stone & Quarry Company had no funds at the bank and Gravlee, Avho Avas a notary public, demanded payment from J. B. Carrington, one of the executors of Gamble — the latter Inning died, — by letter through the postoffice of Jasper Avhere he resided, AAdiich manner of giving such notice aa'us the general custom of the bank. Charges 2 and 3 refused to the defendants are as folloAvs: 2. “Unless notice of dishonor Avas given to the personal representatives of F. A. Gamble, deceased, the jury must find for the defendants.” 3. “Unless the notice of protest Aims giAren to J. B. Carrington and M. A. Gamble in their representative capacity you must find for the defendants.” Coleman & Bankhead, for appellants. — Note payable at a particular place must be presented for payment to hold indorser. — Roberts v. Mason, 1 Ala. 373; Battle v. irmm.su 44 Ala. 106; 4 Am. & Eng. Ency., 2 ed., 371. (2). Notice of dishonor should Imve been given in person. The note Avas payable at Jasper and the indorsers liA'ed there. — Bowling v. Harrison, 6 UoAvard 248. -(3). Second charge good since notice to one is notice to both. Acre r. Ross, 3 SteAV. 288. (4). Carrington Avas not notified as executor because the Avords “executor of F. A. Gamble’’ Avere merely descriptio persona?. — Lucas v. Pittman, 94 Ala. 616. (o). Protest must sIioav presentment at the bank. Mago a n v. Walker, 49 Me. 419; Seneca Go. Bank v. Heass, 5 Den. N. Y. 329. Appling & McGuire, contra. — Cashier Avas the bank, could not present to himself. — Manning v. Maroney, 87 Ala. 563. (2). Nóte can be signed by maker on the back. — Marks v. Bank, 79 Ala. 530; Dunbar v.- Smith, 66 Ala. 490; Espalla v. Wilson, 85 Ala. 491; Melton v. Brown, 6 So. Rep. 211; 18 So. 18 So. Rep. 695. (3). Presentation to one executor sufficient under statute of non-claim. — Mardis v. Shackleford, 4 Ala. 493. (4). Notice of dishonor to one executor sufficient. — Beals v. Peck, 12 Barb. 245; Carolina National Bank v.Wallace, 13 S. C. 347. [MAJORITY — SHARPE.] SHARPE. — The second count of the complaint sets out a note alleged to have been made to the plaintiff by the Jasper Stone Quarry Company, a corporation, and endorsed in blank by the defendants’ testator and others before delivery. The note is as follows: $708.50. Jasper, Ala., Eeb. 6, 1895. On the first day of January 1896, after date we promise to pay to the order of James Odom, Sr., seven hundred and eight & 50-00 dollars, value received, at the Jasper Trust Company’s office, Jasper, Ala., and all right to claim any exemption under the constitution or laws of this or any other State as against this debt is hereby expressly waived by the makers and endorsers of this note. “Jasper Stone Quarry Company, per F. A. Gamble, President.” It is not probable that the parties in using the Avords “at the Jasper Trust Company’s office, Jasper, Ala.,” intended to state the unimportant fact of Avhere the consideration was receiAred. To haAre any material use in expressing the terms of the contract they could only have reference to the place where the note was to be paid and must be given effect as designating that place. So construed the note is payable at a place certain within the requirements of the statute defining negotiable instruments and is subject to the rules governing commercial paper. The second count of the complaint shoAvs that the endorsement declared on was placed on the note before its delivery. The regular endorsement of a negotiable note which imports a contingent liability of the endorser and which is not variable in construction by parol evidence, occurs only after its full execution and delivery to the payee. In such case, unless excuse or good reason for omission be shown, to bind the endorser the note- must be presented at maturity at the designated place of payment and notice of dishonor given him in reasonable time. As to the effect of an endorsement made before delivery such as is averred in the second count of the complaint, the authorities differ; many holding that in such case the endorser is a maker of the note and as such is bound primarily for its payment. The contrary rule has been stated by this court in several cases involving such irregular indorsements where'it was considered that the obligations imported by them were of the same kind and dependent upon the same conditions in respect of presentment and notice as where the endorsement is made after delivery. — Milton v. DeYampert, 3 Ala. 648; Hooks v. Anderson, 58 Ala. 238; Price v. Lavender, 38 Ala. 389. We understand that such is the rule in this State, which is applicable prima facie to a note so endorsed, but that it does not prevent the holder from showing by allegation and proof that one writing his name in blank on the back of a note at its inception did so in execution of the note as a maker; for it is certain that a note may be signed upon its back. — See Vinton v. Ledbetter, 108 Ala. 644; Eudora Mining Co. v. Barclay, 26 So. Rep. (Ala.) 113. The averment in the second count of due and legal presentment for payment to the makers of the note is equivalent to an averment that the'presentation was at the place designated in the note, that being the place agreed on where due and legal presentment could be made. The averment though somewhat in the form of a conclusion, is by analogy to the Code forms, sufficient. — Battle v. Weems, 44 Ala. 105. The pleas are each interposed to the complaint as a whole. The statute of frauds as set up in the third and fifth pleas is without application to «the causes of action shown in the common counts and therefore those pleas do not answer the whole complaint. It was a sufficient compliance with the statute of non-claims if the claim against the testator’s estate was presentecl within the prescribed time to one of the executors. — Mardis v. Shackleford, 4 Ala. 493. The issue tendered by the sixth plea was that the claim ivas not presented to both of them and the plea Avas therefore subject to the demurrer. The evidence in the cause is without contradiction. The Jasper Trust Co. had a banking office and Gravlee was its cashier and a notary public also. At maturity the note was in GraAdee’s possession and the proceedings to effect demand for payment and notice of dishonor Avere had through him. Protest though not necessary to' bind the endorser, Avas authorized by laAV and the certificate is by the statute eAddenee of the facts contained in it.; — Code, § 3030; Dunn v. Adams, 1 Ala. 527; White v. Keith, 97 Ala. 668. The bank being the place fixed by the paper for presentment, Ave think the certificate of presentment at plaintiffs request, together Avith Gravlee’s possession and his position as notary and as cashier are sufficient to' raise the inferences both of Gravlee’s agency to receive payment, and that the note Avas at the bank at maturity. It is unimportant that the note Avas not presented to the bank. Under the circumstances “the legal requirements as to presentment and demand are complied with if the note is in the bank at the time it falls due in the hands of the cashier avIio was ready to receive the money.” Roberts v. Mason, 1 Ala. 373. The plaintiff and defendants resided in different towns and therefore it Avas permissible for the notary to give notice of dishonor through the mail. — Philipe v. Harberlee, 45 Ala. 607; Gindrat v. Mec. Bank, 7 Ala. 324. That mode of giving notice being authorized by law, proof as to custom of giving notice in the same Avay Avas mere redundancy. Notice to one of the executors was sufficient to bind the testator’s estate. — 3 Rand. Com. Paper, § 1244. It is of no importance that the word “as” or its equivalent was not used before the Avord executor in addressing the notice. The object of the notice being simply to convey information of dishonor, any words Avbich had that effect were sufficient.' The foregoing will show that the charges 1 and 5 requested by the defendants in assuming that the mailing of notice was not authorized unless by custom, were bad, and that charges requested numbered. 2 and 3 were susceptible of the construction that notice to both the executors was essential and were therefore calculated to mislead. The evidence without conflict shows that the plaintiff was entitled to recover under the second count; therefore if there was error in the parts of the oral charge excepted to, it was not injurious to the defendants. The failure to enter the judgment so as to be leviable de bonis testatoris was an irregularity but it amounts only to a clerical error which does not authorize a reversal. — Code, § 3334. The judgment will by an appropriate order be here corrected at appellants’ cost. — 1 Brick. Dig. 82, § 184; Guilmartin v. Urquhart, 82 Ala. 570; Boykin v. Cook, 61 Ala. 472. As corrected the judgment will be affirmed. Affirmed.