Taylor v. Perry

PECK, C. J.- 1. Section 2809 of the Revised Code, and the construction it has heretofore received in this court, fully, justified the amendment of the original complaint in this case. — Crim’s adm’r v. Crawford, 29 Ala. 623; Zeigler & Hall v. David, 23 Ala. 127; Jemison v. P. & M. Bank, 23 Ala. 168 ; Gayle v. Bancroft’s adm’r, 22 Ala. 316, 2. Demurrers were filed to all the counts except the [245] fifth, the ground being that the counts did dot show that the plaintiff was the party really interested in the claim sued on in the several counts respectively. It must be admitted that these counts are not framed as ' skillfully and artistically as they might be, nor has the pleader used the most appropriate language to express his meaning. Section 2523, Revised Code, declares that every action founded upon a promissory note, bond or other cohtradt, express or implied, for the payment of money, must be prosecuted in the name of the party really interested, whether he have the legal title"or not. If the averments in these counts do not mean that the claims, described therein, belong to the plaintiff, that he is'the party really interested in them, it is very certain they do not mean any thing else, and are then insensible, without meaning and void; but we are not prepared to say this. Although greatly wanting in perspicuity and precision, we think, reasonably interpreted, they mean that these claims belonged to the plaintiff; that he is, in the language of the Revised Code, “the party really interested.” So interpreted, the sdid demurrers were correctly overruled. The certainty required in declarations and pleas is, that the facts which constitute the cause of action, or ground of defense, are to be so stated that they may be understood by the party who is to answer them, by the jury who is to ascertain the truth of the allegations, and by the court which is to give the judgment. — 1 Chi Pl. 233. It seems to us this is done in these counts, and that the language of said averments was not misunderstood by the defendant. Mr. Chitty says, there are cases where the courts have overruled a demurrer, yet they have directed the plaintiff to amend so that no deviation from the usual form shall appear to have been sanctioned. — 1 Ch. Pl. 233, supra. The Revised Code requires no particular form of words to be used, therefore, any words may be used that show that the plaintiff is the party really interested in the claim, the foundation of the action. [246] 3. All that remains is to determine whether the charge of the court is or is not correct. After a careful examination of the facts agreed upon, and their application to the .issues made up by the parties, I am satisfied the said charge is free from error. The debt described in all the counts of the amended complaint, and sought to be recovered of the defendant, as the executrix of Jesse P, Taylor, deceased, originated in a loan of $2,421 62-100, made by said Gilmer to said deceased, on the 23d of January, 1847, for which debt the deceased, with Wm. Taylor, made his note, payable to said Gilmer. On this note, after the death of said Jesse P. Taylor, in 1851, to-wit: on the 11th day of March, 1853, the defendant, as executrix, &c., paid the interest, and continued to pay the interest annually on the same until the 16th of March, 1858. It may properly be said here, that this debt was not barred by the statute of limitations when the interest was first paid, deducting the six months, when no suit must be commenced against an executor or administrator as such, § 2276, Eevised Code. Furthermore, the payments of the interest, by the defendant, were partial payments, before the bar of the statute was complete. This was evidence of a continuing contract by the party sought to be charged, (§ 2914, Eevised Code,) and was, also, an admission on the part of defendant, as executrix, that the debt had been duly presented. As to the plea of the statute of three years, it was not applicable to this debt, because it was not an open and unliquidated account. On the 16th day of March, 1858, the defendant, as executrix, &c., with the other persons named, made her note for $2,421 62-100, to the said Gilmer, payable twelve months after date, with interest from date, for the said note of Jesse P. and Wm. Taylor, made on the 23d of January, 1847, and upon the receipt of this note the said note of Jesse P. and Wm. Taylor was surrendered to said Mary A. Taylor, executrix, &c., as aforesaid, and on said last note, the note made in 1858, said executrix paid the inter [247] est annually, until the 16th day of March, 1864. Said last note was neither payment nor an extinguishment of the said debt secured by the said note of Jesse P. and Wm. Taylor. — Mooring et al. v. Mobile Dock and Marine Insurance Co., 27 Ala. 254; Parsons on Notes and Bills, 2 vol. 153, 155. It suspended the right of action on the original debt until the maturity of said note, (2 Parsons on Notes and Bills, supra,) and was evidence of an account stated between the creditor and the executrix. On a count, averring an account stated between the creditor and defendant, as administrator or executor, and that in consideration thereof the defendant, as.executor or administrator, promised to pay, &c., does not charge him personally. 2 Williams on Executors, 1507; 4 Am. from last London edition. The payments of the interest on said last named note, the note of 1858, were, in legal effect, partial payments upon the original debt, thus preserving the original debt from the influence of the statute of limitations, to the 16th of March, 1864, when the interest was paid for the last time; from that time to the commencement of this suit but little more than four years transpired. This disposes of the defenses of the statute of limitations and non-claim. The said note, made the 16th of March, 1858, was transferred to the plaintiff, and was a part of the evidence in. the case. ' This transfer, we hold, operated to constitute the plaintiff the party really interested in the said debt, for the payment of which it was made, and authorized and required him to sue in his own name. — § 2522, Eevised Code. The judgment recovered on said note, against Mary A. Taylor and Wm. Taylór, and execution issued thereon, without satisfaction, was no extinguishment of the original debt of said Gilmer on Jesse P. and Wm. Taylor, (2 Parsons on Notes and Bills, 155,) and, consequently, no defense to this action. On the facts agreed upon between the parties, it seems to us the plaintiff was entitled to recover, therefore the court below committed no error in-so charging the jury. Note by The Reporter. — At a subsequent day of the term, appellant’s counsel applied for a rehearing, and filed in support thereof the following argument: Although the statutes of amendment in force are of the most liberal character, they still have limits. For instance, entirely new parties can not be made. — Leaird v. Moore, 27 Ala. 326. Nor can a party be sued in a special character, and a judgment be entered against such party generally. — Bob Taylor v. Taylor, 43 Ala. 649.' Nor can the nature of the action be changed, or an altogether different cause of action be substituted for that upon which the suit is brought. — Harris v. Hillman, 26 Ala. 380; Grim v. Orawford, 29 Ala. 726. Certainly, amóte made by four persons in 1858, is a very different note from one made in 1847 by two persons, and only one of the latter being a maker jointly with the makers of the foriner. Not only so, but the very Consideration of the latter note was substituted for the note first sued upon. If the action had been comymenced on a bond, could this instrument be stricken out, and a note substituted for it ? Certainly not. Yet the substitution of notes, as the consideration of notes made by other persons than those originally sued, is no less a change. "When a debtor gives a promissory note for payment of his indebtedness, the creditor, at the maturity and nonpayment of the note, may sue on the account. But in this case the debt is Contracted, and the note is given by the same party. Nor, in such a case, will an unsatisfied judgment be a discharge from the debt. But in the case at bar this principle does not apply. The note for which the substituted note was given, was extinguished by the fact that new parties were accepted in lieu of the old. A vendor of land has a lien, but if he takes personal security for the purchase money, it is lost. This is on the ground that he no longer looks to the land for the payment of his debt, and that the waiver of his lien is the consideration of the note on which a maker is bound who receives no benefit. "Why should not the same rule apply when new parties are taken as sureties and makers of a note, in the place of the one made by the original debtor? It is an agreement that if certain named persons will- join in a note, the one already existing, as the note of the debtor, shall be discharged. This is just. Otherwise„there would be no consideration for the note which was accepted and regarded by all parties as valid. ' When a partnership note is surrendered for that of one member of the firm, it is a payment of the note so surrendered. — Arnold v. Camp, 12 Johns. 409; Holmes v. Drake, 1 Johnson, 84. Why should ■not the same principle apply in the case when four parties, three of whom have no connection with the original transaction, give their note for the ‘ one made by the original debtor ? If the note of one person will pay the note given by a partnership, why should not the note of four persons pay the note of two 7 The reason seems, in the latter case, to be stronger than in the former, because additional, instead of less, security is given. [248] The judgment is affirmed, and the appellant will pay the costs. When a note is given as a collateral security, and is transferred by the creditor, it operates as a payment of the original note. — Cocke v. Chaney’s adm’r, 14 Ala.'66. When a new note is given for an old one, and it is transferred by the creditor, it should operate as a payment of the note surrendered. That was the fact in this case. By the Court. — The rehearing is-denied.