Winter v. Coxe 41 Ala. 207

WINTER vs. COXE.

[ACTION ON PEOMISSOBY NOTE.]

1. Construction and sufficiency of count on note. — A count on a promissory note, which avers, that the plaintiff claims of the defendant the amount therein specified, “due by promissory note made by him, for the Winter Iron Works, payable at the office of the Montgomery Insurance Company, to the order of the defendant, and endorsed by said defendant; that the said Winter Iron Works are insolvent, and were insolvent at the time said note became due and payable,”' — is against the defendant as endorser, and not as maker ; and it is insufficient to charge him, because it does not show that his liability is to be determined by the commercial law, (since the court cannot judicially know that said insurance, company is a banking-house,) and does not aver a sufficient excuse for the failure to sue the maker, if the note is not governed by the commercial lawr.

2. Same. — But a count, which avers, that the note was made by a corporation, “by said defendant as its agent,” payable ata banking-house, to the order of the defendant, and by him endorsed to the plaintiff; “and said note not being paid at maturity, the defendant had notice of the non-payment thereof,” — is good and sufficient, as a count against the endorser of a note governed by the commercial law.

3. Same. — A count, which avers, that the note was made by a corporation, “by said defendant as its agent,” payable at a banking-house, to the order of the defendant, and by him endorsed by the plaintiff; that the defendant “was the sole agent of said corporation at the maturity of said note, and no other person was authorized to pay said note for said corporation; wherefore plaintiff avers, that said defendant had due notice of the non-payment of said note at maturity,” — is not sufficient, as a count against the endorser of a note governed by the commercial *208law, because it does not aver notice of non-payment, nor contain allegations which dispense with, the necessity of notice.

4. Notice of non-payment to endorser; excuse for failure to give. — The insolvency of the maker at the time a note is given, or at the time it falls due, does not excuse the failure to give the endorser notice of nonpayment at maturity.

Appeal from the Circuit Court of Montgomery.

Tried before the Hon. F. Bugbee.

This action was brought by Bichard Coxe, against Jos.

5. Winter; was commenced on the 13th October, 1857; and was founded on a promissory note, of which the following is a copy.

“$330.17. Montgomery, December 29, 1854. On the first day of January, 1856, we promise to pay, to the order of J. S. Winter, three hundred and thirty 17-100 dollars, value received, at the office of the Montgomery Insurance Company.

“For the Winter Iron Works,

by J. S. Winter, Agent.”

The original complaint contained a single count, which was in these words: “The plaintiff claims of the defendant three hundred and thirty 17-100 dollars, due by promissory note made by him, for the Winter Iron Works, and dated on the 29th day of December, 1854, and payable January 1, 1856, at the office of the Montgomery Insurance Company. Said note is endorsed by defendant; and plaintiff avers, that the Winter Iron WorJcs are insolvent, and were insolvent at the time said note became due and payable; said note being payable to the order of defendant.”

The defendant craved oyer of the note, and demurred to the complaint, assigning the following causes of demurrer : “1st, that the complaint shows no legal grounds of action against this defendant; 2d, that said complaint is founded on the endorsement of a note payable in bank, or at a banking-house, and there is no averment of notice to the defendant of the non-payment of said note, or excuse given for such failure of notice ; 3d, that the action is upon an endorsement of a promissory note, and there is no averment of suit against the maker, or excuse for failure to sue, *209so as to bind the defendant to pay the same; 4th, that there was no presentment of said note, at the place where payable ; and, 5th, that said note is the note of the Winter Iron Works, and not of the defendant.” The court overruled the demurrer, and the defendant excepted.

The plaintiff then amended his complaint, by leave of the court, by adding the two following counts :

“2. The plaintiff claims of the defendant the further sum of three hundred and thirty 17-100 dollars, on a promissory note made by the Winter Iron Works, a corporation, by said defendant as its agent, on the 29th December, 1854, and payable on the 1st day of January, 1856, at the office of the Montgomery Insurance Company, a banking-house, to the order of the defendant, by whom said note was endorsed to the plaintiff; and the said note not being paid at maturity, the defendant had due notice of the nonpayment thereof. The said note, with the interest thereon, is still unpaid.

“3. The plaintiff claims of the defendant the further sum of three hundred and thirty 17-100 dollars, on a promissory note made by the Winter Iron Works, a corporation, by said defendant as its agent, on the 29th December, 1854, and payable on the 1st January, 1856, at the office of the Montgomery Insurance Company, a banking-house, to the order of the defendant, by whom said note was endorsed to the plaintiff. The said note, with the interest thereon, is still unpaid; and plaintiff avers, that the defendant was the sole agent of said Winter Won Works at the maturity of said note, and that no other person was authorized to pay said note for said Winter Won Works. "Wherefore plaintiff avers, that said defendant had due notice of the nonpayment of said note at maturity.”

The defendant demurred to each of these counts, assigning the same grounds of demurrer as to the first. The court overruled the demurrer, and held each count sufficient ; to which exceptions were reserved by the defendant. An issue was then formed between the parties, and submitted to a jury; but the record does not show what pleas were filed. “On the trial,” as the bill of exceptions states, “the plaintiff offered to read to the jury the note above set *210out, to which the defendant objected ; which objection was overruled by the court, and the note was read to the jury ; to which the defendant excepted. The plaintiff then offered to read, from the records of the circuit court, several judgments against the Winter Iron Works, and to show, by the officers’ returns, that said judgments remained unsatisfied; said judgments and the returns of said executions being anterior to the maturity of said note. To this proof the defendant objected, as illegal and irrelevant; but the court overruled the objections, and allowed the evidence to go to the jury ; to which the defendant excepted. The plaintiff then offered evidence to prove that, at and about the time of the maturity of said note, the said Joseph S. "Winter, the defendant, was acting as the agent of said Winter Iron Works; and the witness who made this evidence stated, also, that he knew of no other persons attending to the affairs of said corporation at the time last aforesaid ; which proof was objected to by the defendant, as illegal and irrelevant; but the court overruled the objection, and allowed the evidence to go to the jury; and the defendant excepted. This being all the proof, and there being no evidence offered of the presentation of said note for payment, at the place where it was payable, or of any protest for non-payment, or of any notice of non-payment to the defendant, (except as the same may be inferred from the above proof,) the court charged the jury, that, if they believed the evidence, they should find for the plaintiff the amount of said note, with interest; to which charge the defendant excepted.”

All the rulings of the court, to which, as above stated, exceptions were reserved by the defendant, are now assigned as error.

Chilton & Thorington, for appellant.

1. The note being set out on oyer, it must be looked to in considering the sufficiency of the complaint on demurrer. The note, as set out, is the note of the corporation. — Roney s Adm’r v. Winter, 37 Ala. 277. The first count is against the defendant as maker, the additional words being mere surplusage, or matter of description, and not sufficient to show *211that he signed the note as the agent of the corporation. If regarded as a count against am endorser, it is fatally defective, for want of an averment of presentation for payment at the place where it was payable, and notice of non-, payment. The note is commercial paper, and governed by the law merchant. — 3Jiltonv. DeTampert, 3 Ala. 648; Evans v. Gordon, 8 Porter, 346 ; Smith v. Strader, 9 Porter, 446; O'Hara v. Ilaivkinsville Bank, 2 Ala. 367; Pond v. Lockwood, 8 Ala. 669; Beal v. Waimvright, 6 Ala. 156.

2. The averment of the insolvency of the corporation is no excuse for the failure to present the note for payment, and to give notice of non-payment to the endorser.— Bishop v. Bradford, 16 Ala. 769; Brown & Sons v. Ferguson, 4 Leigh, 37.

3. The second count is bad. The facts averred, as an excuse for not giving notice, may consist with the fact that the corporation had funds at the place of payment. Besides, this count avers, “that no other person” [than the defendant] “was authorized to pay said note for said” corporation; from which the inference legitimately follows, that it would have been paid, if it had been presented, and that it was not presented. The reason for demand and notice is, that the endorser may pay and take up the note, and then protect himself by suit against the maker. The averment of Winter’s agency and authority to pay when the note matured, is a reason why the note should have been presented at the place of payment, and certainly affords no ground for charging him with its payment, two years after maturity, without such presentation.

4. The same principles apply to the rulings of the court on the evidence, and in the charge to the jury. The charge is objectionable, also, because it invaded the province of the jury. — Henderson v. Mabry, 13 Ala. 713 ; Williams v. Shackelford, 16 Ala. 318 ; Carlisle v. Hitt,, 18 Ala. 398.

Watts & Trox, contra.

1. The note sued on was drawn by the defendant, as the agent of the corporation, payable to his own order. An agent cannot make a contract with himself. If he contracts in such a manner as not to bind his principal, he. becomes individually responsible. The *212note could have no legal effect whatever, until endorsed by the defendant; the endorsement alone gives it validity, and makes him the real and legal maker of the note. — Lea & Langdon v. Branch Bank at Mobite, 8 Porter, 124; Smith v. Strader, 9 Porter, 446; Murdock v. Caruthers, 21 Ala. 785.

2. If the defendant was the maker of the note, no presentation for payment, or protest, or notice, was necessary to fix his liability. — Evans v. Gordon, 8 Porter, 142; Sale v. Branch Bank at Decatur, 1 Ala. 425; Leigh v. Light/oot, 11 Ala. 935; Story on Prommissory Notes, § 201, and notes; Smith & March v. Pauli, 8 Porter, 503; Randolph v. Parish, 9 Porter, 76.

3. As between the defendant and the corporation, there was no consideration; and he was therefore liable without demand and notice of non-payment. —Gee v. Williamson, 1 Porter, 313; Holman v. Whiting, 19 Ala. 703.

4. The case of Roney’s Adm’r v. Winter, cited for appellant, is unlike this case. In that case, the note was not payable to Winter’s own order, and was not endorsed by him ; and the only question was, whether the face of the note showed, prima facie, that he was the maker.

5. A demand is not necessary to enable the holder to sue the maker of a note, even if it be payable at a bank, or other particular place. — Evans v. Gordon, supra ; Montgomery v. Elliott, 6 Ala. 701.

6. If Winter was the sole agent of the corporation, he knew that the' note was not paid at maturity, and there was no necessity to present for payment. Gessante ratione, cessat etiam lex.