White v. Central Nat. Bank

GARDNER, J. [1] The pleas of the defendants were addressed to the complaint as a whole, which consisted of counts 2 and 3. Demurrer was sustained as to pleas 1 and 2, and overruled as to 3, 5, 6, and 7. Fleas 1 and 2 attempted to set up misrepresentation or fraud on the part of the agent of' the Pep-to-Lac Company, as to the value of shares of stock in said company, for the purchase price of which the note was given. Count 2 alleged that the plaintiff “is a *299 holder in due course of said note.” Under the provisions of our statute (section 5007, Code 1007), a holder in due course is a holder who has taken the instrument under the following conditions: “(1) That the instrument is complete and regular upon its face. “(2) That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact. “(3) That he took it in good faith and for value. “(4) That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.” These pleas therefore presented no sufficient answer to said count 2, and reversible error cannot be predicated upon the action of the court in sustaining demurrer thereto. [2] Demurrer to replication No. 1 to pleas 3, 5, 6, and 7 was overruled, and this is assigned for error. Whether or not said replication was sufficient as an estoppel in pais (Kimball v. Penney, 117 Ala. 249, 22 South. 899) we need not determine, as we do not think this question is here presented; nor was it presented to the court below by the assignments of demurrer interposed thereto. The replication expressly sets up that the plaintiff had no knowledge or notice of any defense to said note at the time of its purchase, wihick. is the point taken by the first assignment of demurrer. The next assignment is upon the ground that the replication was no more in legal effect than the implied representations arising from the execution of the note. But the replication shows mucu more than this, in that it shows the purchase of the note for value before maturity and without knowledge or notice of any defense. We are persuaded that, if the replication was subject to demurrer, which question we need not here decide, it was not subject to the assignments of demurrer interposed thereto. Other questions presented by this record are, we think, sufficiently answered by the holding of this court in the two following cases: Neill v. Central National Bank, 78 South. 73, 1 present term; Sample v. Tennessee Valley Bank, 76 South. 936, 2 present term — which seem to have arisen from like transactions as that here involved. Finding no error in the record,- the judgment will be affirmed. Affirmed. ANDERSON, O. J., and MeCLELLAN and SOMERVILLE, JJ., concur. Footnotes [1] Ante, p. 297. [2] 200 Ala. 578.