Winter v. Coxe

BYRD, J. 1. The counsel argue, that the first count is against the appellant as maker of the note. In our opinion, each count is against him as endorser thereof. We cannot take judicial notice of the fact, if it is one, that the Montgomery Insurance Company, or its office, was a banking-house within the meaning of sections 1525 and 1543 of the Code ; and the excuse alleged for non-compliance with the latter section is not one recognized by law.—Code, § 1546. The demurrer to the first count should have been sustained. There are authorities, as argued by the counsel for appel [213] lee, which sustain the position, that, under certain circumstances, an endorser of a bill of exchange may be held liable as the maker of a promissory note ; but the complaint should so declare against him. Our system of pleading, under the Code, is a wide departure from the certainty and particularity required by the wisdom of the common law ; yet it preserves its distinctions, in the forms of complaints, between a drawer, or maker, and an endorser of a bill or note ; so that a complaint against a party as drawer will not authorize a judgment against him as acceptor or endorser of a bill, if the objection is made on the trial. 2. The second count of the complaint we are constrained to hold good, under the provisions of the Code. In this, and the third count, it is averred, substantially, that “the office of the Montgomery Insurance Company” is a banking-house. If it was, then, under section 1525 of the Code, the liabilities of the parties to the note sued on must be ascertained by the commercial law. An endorser of an inland bill of exchange is entitled to notice of non-payment at maturity; but there is no necessity for protest, as in the case of a foreign bill, in order to fix his liability. It is averred in the second count, that the defendant had due notice of the non-payment of the note at maturity. This, with the other averments, was sufficient to charge him as an endorser. 3. Although it is averred in the third count, that “the defendant was, at the maturity of said note, the sole agent of said Winter Iron Works, and that no other person was authorized to pay said note for said Winter Iron Works;” yet that was not sufficient to relieve the plaintiff from the duty of giving notice to the endorser of the non-payment of the note; and the subsequent averment, that he had notice thereof, is entirely predicated on the above recited allegation, and is a conclusion therefrom drawn by the pleader. The defendant may have been the sole agent of the Winter Iron Works, and no other person may have been authorized to pay the note; but such allegations are not equivalent to an averment that the defendant was the sole agent to pay the note for the Winter Iron Works, and that the officers thereof were not authorized to do so, at maturity thereof. [214] 4. The insolvency of the drawer of a bill, or maker of a note, at the time the bill or note was given or payable, is no excuse for not giving notice of the non-payment to the endorser at maturity. Such is the law in this country.—Bank of America v. Petit, 4 Dallas, 127—168 ; Jackson v. Richards, 2 Caines’ R. 343 ; May v. Coffin, 4 Mass. 205 ; Furman v. Fowle, 12 Mass. 89; Agan v. McManus, 11 John. 189. It does not appear from the bill of exceptions that the endorsement of the note by the defendant, if he ever endorsed the same, was given in evidence on '¿he trial, nor that he had any notice of non-payment of the note at maturity ; and the court therefore should not have given the charge it did to the jury. The proof did not authorize such a charge, on the second count of the complaint. If the office of the Montgomery Insurance Company was a banking-house at the time the note was made, or if the act incorporating it should be given in evidence, then this case may hereafter turn upon principles different from those applicable to a promissory note not payable at a bank or banking-house; and upon the present record we will not attempt to lay down the principles governing either phase the case may assume. We intimate no opinion upon the question, whether the defendant, if he endorsed the note, may not be held liable thereon as a maker, upon principles of commercial law; nor upon that other question, whether he is not liable as a maker of the note, upon the signature thereto and the contents thereof. There being no count against him as the maker of the note, we do not think it proper, upon the present record, to pass upon those interesting questions. Upon the questions of the duties and responsibilities of agents, the construction of the peculiar instrument sued on, and of the liabilities of the parties thereto, the following authorities may be consulted: Story on Agency, 144; Story on Promissory Notes, p. 70 ; 37 Ala. 277 ; Edis v. Bury, 6 B. & C. 433; 9 D. & R. 492; 2 Car. & P. 559; Smith v. Strader, 9 Porter, 446; Mims v. Central Bank, [215] 2 Ala. 298 ; Goggin v. Smith, 35 Ala. 686; as also cases cited on briefs of counsel in this cause. Judgment reversed, and cause remanded. Judge, J., not sitting.