Hanes v. Farmers & Merchants Bank

Jenkins, J. This case and the case referred to in the headnote of this decision were suits by the same plaintiff, and the defenses relied upon in each case were in substance identical. The divisions of the plea are numbered in like manner in each case. In the instant case an amendment was offered amplifying the third division of the fourth paragraph of the answer, but as the former case was treated by this court as though it had been a suit between the original parties to the note, this proffered amendment does not alter the rule announced there. Another amendment was offered, amplifying the first and second divisions of the said paragraph of the answer. Since, however, the substance of these grounds was set forth in the original plea, and this court has ruled that suph does not constitute a good defense, the fact that such amplification was attempted by amendment can not alter the rule already announced. This was a suit on two separate notes for the purchase price of one tract of land, and it may be remarked that the last of the amendments offered undertakes to set forth that the defendant’s “signature to the instrument was procured by fraud;” “that [130] at the time he signed the instrument sued on, Sandridge and Terrell read to him a paper which they represented to him was the instrument he was to sign and which he did sign was an application, but defendant states that the said Sandridge or Terrell did not read to him the note but wilfully, wantonly, and fraudulently misled the defendant into signing a note which they did not read and represented to him to be an application for this property.” It would seem to have been incumbent upon the defendant to specify which of the two notes sued upon this defense applied to. Even if the rule that “the singular or plural number shall each include the other, unless expressly excluded” (Polit. Code, § 4, par. 4), can be applied to pleading, pleadings are to be construed most strongly against the pleader; and where, as in this case, each note was not only .signed, but indorsed by the defendant, it would seem that the proposed amendment, alleging that the defendant thought his signature to “the note” was an application for the lot to be purchased, is altogether indefinite. The additional statement that the defendant did not have his spectacles with him, and therefore could not read at the time the notes were signed, is not sufficient, under the authorities cited in the other case, to alter the rule. Judgment affirmed. Broyles, P. J., and Bloodworth, J., concur.