Blumberg v. Speilberger

SOMERVILLE, J. Section 5023 of the Code provides that— “As respects one another’, indorsers are liable prima facie in the order in which they in *280 dorse; but evidence is admissible to Show that as between or among themselves they have agreed otherwise.” This rule, of course, applies to accommodation .as well as to regular indorsers. In Braham v. Atwood, 3 Stew. 247, and later in Sherrod v. Rhodes, 5 Ala. 683, 691, it was held that— “The fact merely, that two or more persons were successive accommodation indorsers for another, did not make them cosureties, but that to constitute that relation there must be an agreement between them to that effect, or some fact or circumstance must exist from which it may be inferred that they intended to be bound as cosureties, although they have not signed the instrument jointly, but successively.” This has always been the law. It may be that the special plea was subject to demurrer for want of an unequivocal allegation that there was an agreement between plaintiff and defendant, express or implied, that they were to be jointly liable as indorsers or sureties for the Patterson Grocery Company. But we think that -the plea, as for that objection, was not subject to a motion to strike it from the files. However, the record does not exhibit the motion, and the ground upon which it was based, if any, does not appear. Hence the trial court cannot be put in error for overruling the motion. Motions which seek to strike out from pleadings supposedly irrelevant parts are addressed to the discretion of the trial court, and they may be overruled without error. Davis v. L. & N. R. Co., 108 Ala. 660, 18 South. 687; Tuscaloosa R. & U. Co. v. Lewis, 207 Ala. 463, 93 South. 386. The plea in question was faulty in its unnecessary allegations of mere matters of inducement; but those allegations did not change the legal effect of the plea, and their presence could not possibly have prejudiced plaintiff, but quit's the contrary. As matters of evidence, we can discover no valid objection to their admissibility, since they served to show the relation of the parties to the grocery company and its managing owners, and to explain their conduct and to shed light on their intentions in placing their indorsements onx these notes. For these purposes those matters had some evidential value, though it may have been slight. Conceding, without deciding, that defendant was improperly allowed to ask plaintiff, on cross-examination if his visit to Sheffield shortly before these notes were indorsed was not for the purpose of aiding Ms brother-in-law, Feldman, to buy out the Patterson Grocery Company, the error cannot serve as a ground for reversal of the judgment. The defendant had already testified to that effect, fully and specifically, without' objection from the plaintiff, and the latter had made no-denial of the fact on his direct examination. Hence, if the matter could be deemed prejudicial at all, the prejudice was already complete. The issue of joint' or successive indorsement and suretyship was clearly submitted to the jury as the decisive issue in the case, and we find no erroneous ruling of the trial court which could justify a reversal of the judgment. Affirmed. ANDERSON, O. J., and McCLELLAN and. THOMAS, JJ., concur.