Weinstein v. Citizens' Bank

SAYRE, J. [1 ] There was no error in overruling the depiurrers to the several counts of the complaint. There was no uncertainty as to the party by whom the note in suit was executed. The amended counts allege, in effect, that the note was executed for the defendant partnership, Weinstein Bros., by L. Wleinstein, one of the defendants named as trading under that firm name. This showed with sufficient certainty that the note in suit was executed by L. Weinstein for himself, for his copartner E. Weinstein, and for Weinstein Bros., a firm composed of L. Weinstein and E. W einstein. [2] The demurrers to the pleas numbered 3 and 4 were properly sustained on the ground assigned, in substance, to them, viz. that they contained a blind reference to a piano contest agreement on an alleged breach of which the pleas counted, but which was not set out in Iiíbc verba nor according to its legal effect. [3-6] It is to be conceded, that there was technical error in overruling the demurrer to the plaintiff’s (appeRee’s) second replication to defendant’s (appellant’s) several special lileas other than 3 and 4. The replication, showing facts that made plaintiff a purchaser for value before maturity and in due course, was none the less a good- answer to those pleas which set up secret defenses because, it repeated the allegations of the amended complaint. The objection to these pleas that they were no answer to plaintiff’s case as a purchaser for value in due course should have been taken by demurrer, but nevertheless the facts averred in the replication answered the" averments of the pleas. The pleading was disorderly (Slaughter v. First Nat. Bank of Montgomery, 109 Ala. 157, 162, 19 South. 430), but it raised a meritorious issue, and therefore did defendant no harm of which he can be heard to complain. As for Ideas 6 and 7, special pleas of non est fact-um, the special replication was no answer to them, and for this reason there was technical error, as we have said, but the undisputed facts showed that the ruling on the demurrer to the replication was harmless to defendant in this respect also. Defendant admitted on the witness stand that he had signed the note described in the complaint. His plea of non est factum was predicated upon the fact that when signed the note was attached to a piano contest contract, to ' which, however, it was not attached when offered in evidence. But the contract, which had been attached and which too had been signed by defendant, was offered in evidence and not disputed, and it contained an express authority to the payee in the note, plaintiff’s indorser, to detach the note. Defendant equivocated to some extent as to his knowledge of the meaning of the contract, but he testified to no facts going to show that his signature had been liroeured by fraud, or that for any reason whatever he should not be bound by the terms of the contract into which he had entered voluntarily. On the whole record, then, we say no harm resulted to defendant from the ruling on the second replication. [7] Pending the suit the defendant E. Weinstein died. This appears to be a sufficient reason for abating the suit as to him while continuing it against the other defendants. Jones v. Engelhardt, 78 Ala. 505. [8] Defendant objected to the introduction of the note in evidence on the ground that it had been altered. If the note was altered, the manner of its alteration is not shown, though the objection intimates that the several dates of payments had been changed. The court overruled the objection. For aught we know the court upon inspection’ of the note determined that there was no foundation in fact for the objection taken against the note, and, of course, in these circumstances we cannot say there was error. [9] Plaintiff’s note was in evidence without countervailing proof of any kind. Plaintiff was therefore entitled to the general affirmative charge which it got. Affirmed. ANDERSON, C. J., and McOLELLAN and GARDNER, JJ., concur.