New York & Alabama Contracting Co. v. Meyer & Co.

BRICKELL, J. It is settled by the decision in the case of the New York & Ala. Contracting Company v. Selma Savings Bank, at the present term, that notice of the dishonor of the check drawn by the appellants on Ferguson, one of their copartners, is not necessary to fix their liability. 2. At common law, when suit was founded on a written instrument, the onus of proving its execution by the defendant rested on the plaintiff. To obviate the delays incident to the common-law rule, and the surprise to which the plaintiff was always subject under the operation of this rule, by being compelled, by the interposition of pleas wholly unfounded in fact, yet involving this issue, to make proof of this fact, the territorial statute of 1811 made all written instruments, the foundation of suit, evidence, unless their execution was put in issue by a sworn plea. The invariable construction of that statute was, that when a written instrument was the foundation of suit, its execution was not a matter in issue, unless it was denied by a verified plea. When such plea was not interposed, the execution was, in effect, conclusively admitted of record by the defendant. Observing this construction, it was held by this court, in Fowlkes & Co. v. Baldwin, Kent & Co. (2 Ala. 705), that one of several defendants, sued as partners, could not offer evidence that he was not a partner, without a verified plea denying the execution of the.instrument. The terms of the statute of 1811, and of the statute now of force (Rev. Code, § 2682), are so similar, that this court has held the construction of the former statute must be applied to the latter. Ala. Coal Mining Co. v. Brainard, 35 Ala. 476. It cannot be important whether a defendant seeks to dispute the execution of the note on independent evidence offered by himself, or on evidence which the plaintiff may have introduced in the progress of the trial. The evidence is not available to him, because the fact itself is not an issue before the jury. There is no pleading putting it in issue, and, of consequence, nothing on which the verdict of a jury can be predicated. The fact of execution is admitted of record, for all the purposes of the suit and the trial. There was, of consequence, no error in the [329] rulings of the court on this point. Bills was to be esteemed a partner, and the written instruments as the acts of the partnership, binding on him, he not having contested the fact by a sworn plea, the only mode of contesting' it which the law allows. 3. We do not understand from the bill of exceptions that the account, or the list of items of charge claimed by the plaintiffs, was allowed to go to the jury as evidence. If it was, it was certainly inadmissible. Grant v. Cole, 8 Ala. 515. It appears that the plaintiffs offered evidence tending to establish the correctness of the account, and, so far as the record discloses, no evidence controverting it was offered by the defendants. The bill of exceptions then recites the charges given and refused, to which exceptions were reserved, and concludes : “ The court, against the objection of the defendants, allowed the account for the goods mentioned in the third count in the complaint, as made out by the plaintiffs, to go to the jury; and the defendants excepted.” The bill of exceptions abstains from reciting that the account was allowed to go to the jury as evidence. It would not be fair to the circuit court, or just to the parties, or in accordance with the uniform rule which this court observes, for us to presume, in the absence of the statement that such was the fact, that the court, in violation of law, permitted it to go to the jury as evidence. The fair intendment is, that when the jury were about retiring, they were permitted to take the account with them, not as evidence, but as a paper used on the trial, that they might, on a comparison of its charges with the evidence, determine to what extent it was proved, and for which, if any of its items, they would render a verdict. 4. The amendment of the complaint, by striking out the wrong, and inserting the true Christian name of one of the defendants, was properly allowed. The judgment is affirmed.