Winfield Bank & Trust Co. v. Roberts

McCLELLAN, J. The appellant, a banking company, sued W. S. Taylor, W. T. Pate, and T. A. Roberts, appellee, on a promissory note made to the banking company. Judgment by default was taken against Taylor and Pate. Appellee appeared and contested the cause. Among other pleas, he interposed those numbered 5, 6, A, and B. These pleas, with the demurrers thereto, will be reproduced in the report of the appeal. [1] The sufficiency of plea 5 against the demurrer filed is adjudged in Tatum v. Com. Bank & Trust Co., 193 Ala. 120, 124, 69 South. 508, L. R. A. 19160, 767, et seq. If the effect given by law to the facts averred in the plea could be avoided because the creditor had other debts against the appellee’s principal in the note, that matter should have been brought forward through replication to the plea;' it was not an excluding allegation of fact, that the defendant was obliged to negative in Ms plea. The insolvency of the principal is not a condition, to the existence of the duty on the part of the bank to apply a general deposit of the principal to the satisfaction of the principal’s indebted'ness to the bank, which, to fail to observe, operates the discharge of the surety. [2] The sixth plea invoked the same principle; and that plea was not subject to the demurrer. White v. Life Asso., 63 Ala. 419, 424, 35 Am. Rep. 45 et seq.; Tatum v. Com. Bank & Trust Co., supra; Davenport v. State Banking Co., 126 Ga. 136, 54 S. E. 977, 8 L. R. A. (N. S.) 944, 115 Am. St. Rep. 95, 7 Ann. Cas. 1000 et seq. [3] Pleas A and B affirm a state of facts that disclose the absence of consideration to support the promise (of appellee) declared on. We find in the record no grounds of demur *315 rer to these pleas, specifying objections within the rule of Code, § 53-40, other than the general appropriation to the purpose of the grounds of demurrer addressed to pleas 5 and 6. [4] The difference between the two classes of pleas renders grounds addressed' to pleas 5 and 6 entirely inapt to pleas A and B. Nevertheless it is very clear that these pleas, A and B, were not demurrable. Rutledge v. Townsend, 38 Ala. 706, 712. [5] There is nothing in these pleas to justify the assumption that in consequence of signing the instrument there was induced or effected an extension of the time of payment •or any other form of forbearance. Affirmed. ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.