Clayton v. Jordan

McCLELLAN, j. The action was instituted by app'ellee against appellant. The complaint contains two counts. In the first count the plaintiff impleaded defendant as an indorser of two negotiable instruments of even date, promising to pay different sums on *335 different dates, executed by one Nix to defendant, and for value, before maturity, transferred by indorsement in blank by tbe defendant to tbe plaintiff. Tbe demurrer complained of misjoinder of causes of action through the inclusion in a single count of defendant’s liability as indorser of two distinct negotiable instruments. Such a transfer created in the indorsee an original cause of action. Sherrill v. Bank, 195 Ala. 175, 178, 70 South. 723. Capital City Ins. Co. v. Quinn, 73 Ala. 558, 560. The indorsement of these negotiable, instruments invested the indorsee, contingently, with distinct causes of action that could not be properly joined in a single count. Friddle v. Braun, 180 Ala. 556, 61 South. 59. The demurrer was erroneously overruled; but, since the defendant admitted the transfer of the instruments to the plaintiff as averred in the complaint, and that he had not paid them; and since the undisputed testimony established the fact that the payor had not paid the notes, and, since the only matter contested, in this aspect of the case, was whether defendant’s liability as indorser became fixed through seasonable, appropriate, effective notice to him of dishonor (Code, §§ 5043, 5055, 5057), no possible prejudice resulted to defendant from the erroneous overruling of his demurrer, taking the objection of misjoinder, and, hence, reversible error cannot be predicated of this action. Rule 45 (175 Ala. xxi, 61 South, ix). The second count was not defective. It declared upon an'account “for the balance due on an automobile sold by the plaintiff to the defendant,” which was averred to be due and unpaid. The count sufficiently disclosed that the sum claimed was due from defendant, the buyer, to the plaintiff, the seller. Special instruction A, given at plaintiff’s instance, conformed to the regulatory rule for the mailing pf notice of dishonor prescribed by Code, § 5057. It was not error to give this instruction. While the charge did not in terms refer to the evidence before the jury, this omission did not render the instruction affirmatively faulty. If the defendant apprehended that the instruction was calculated to mislead the jury, he should have requested an explanatory instruction. This charge is also criticised for that it concluded in plaintiff’s favor upon an hypothesis that took no account of the matter of set-off asserted in defendant’s pleas 7 and 8, addressed to count 2 of the complaint, already mentioned. As appears, charge A did not assume to define the measure, the amount, plaintiff would, in the contingency stated in the charge, be entitled to recover. The aggregate amount represented by the notes was upwards of $540. The set-off asserted was to the amount of $137 and interest. The set-off pleaded was for less than the amount claimed (in count 1) of defendant as indorser of the notes. If the hypothesis of requisite notice of dishonor was sustained, plaintiff was, in any event, due to recover of defendant some amount; the set-off asserted being, in all events, less than the aggregate of the notes indorsed by defendant. The defendant was not prejudiced by the giving of charge A. In the oral charge the court fully instructed the jury on the subject treated in special charge B, given at plaintiff’s instance. The phrasing of the oral charge contained the matter appellant contends was inadequately stated or omitted from special charge B, viz. that the care a bailee of the character described in charge B should have bestowed should have been that a reasonably prudent man would have taken. The charge might have been better framed in this aspect; but, since it required of the bailee “reasonable care” of the car, and since the oral charge efficiently stated the rule in that, regard, it is manifest that the jury could not have been misled thereby, to defendant’s prejudice. Having disposed of all the assignments of error insisted upon in brief, finding them without merit, the judgment is affirmed. Affirmed. ANDERSON, C. J., and SOMERYILLE and THOMAS, JJ., concur.