Agee v. Medlock

GOLDTH WAITE, J. — We can only consider the questions presented upon the refusal of the court to give the charge requested by the appellants, as the exception taken applies to the action of the court on that point alone. — Andrews v. Broughton, 21 Ala. 200; Croft v. Ferrell, 21 ib. 351; Sammis v. Johnson, 22 ib. 690. The plea that the plaintiff was not, at the commencement of the action, the legal owner of the note sued on, was defective, under our decisions, for want of the affidavit required by the statute (Beal v. Snedicor, 8 Porter 523; Jennings v. Cummings, 9 ib. 309; Frazer v. Brownrigg, 10 Ala. 817); and the effect of these decisions seems to be, that such a plea only puts in issue the genuineness of the endorsement (Frazer v. Brownrigg, supra); and if so, it is disproved, when that fact is established. Here the endorsement of the note was fully proved. It was, it is true, made by the payee of the note in blank ; but the effect of such an endorsement is, to authorize the holder to fill it up with any name he pleases. — Cope v. Daniel, 9 Dana 415; Kennon v. McRae, 7 Port. 175; Olcott v. Rathbone, 5 Wend. 494. As the fact of the endorsement was fully proved, and as the charge requested went, not to that fact, but to a matter independent of it, the argument of the counsel for the appellant, based upon the assumption that the evidence sustained the plea, fails, if the plea itself went no farther than to put in issue the genuineness of the endorsement. Without reference, however, to the plea, the question is [284] presented, whether, notwithstanding the endorsement, if the plaintiff was not the owner of the note sued on, that fact would not be a good defence under the general issue. ' The reasoning of the judge who delivered the opinion in Bryant v. Owen, 2 S. & P. 134, is certainly in favor of the position; but we think that the cases to which we have referred in the former part of the opinion, which limit the effect of such a plea when pleaded specially to the act of the assignment only, virtually overrule this decision. When the possession of the note is not mala fide, and the only question is as to the right of the party suing to maintain the action, all that is necessary to prove is that the plaintiff has the legal title. The defendant is not deprived of any defence he may have against the real owner (Bowen v. Snell, 9 Ala. 481; Frazer v. Brownrigg, supra); and there is, on principle, no objection to a suit on a promissory note, on the ground that the plaintiff has no interest in it. — Gage v. Kendall, 15 Wend. 640; Guernsey v. Burns, 25 ib. 411; Aspinwall v. Meyer, 2 Sandf. Sup. Ct. R. 180; Brown v. Clark, 14 Penn. (2 Har.) 469. It was upon this principle that in Moore v. Penn, 5 Ala. 135, it was held inadmissible to show, that one for whose use a suit was brought had no interest in the note, unless it became necessary to prove some defence as against the actual owner. It follows from what we have said, that the plea was bad, because, conceding for the sake of the argument that its effect was to put in issue the ownership of the note, such an issue would have been an immaterial one; and the rule established in Cullum v. The Bank, 4 Ala. 22, is, that if the evidence sustains such an issue, and other pleas are pleaded upon which issue is also taken, the defendant is not entitled to a general verdict. In no aspect of the case can we perceive any error. Judgment affirmed.