Johnson v. Hanover National Bank

STONE, C. J. The present suit is brought on two notes, executed in Alabama, and payable “ at the Bank of Opelika, a bank located in the city of Opelika, Alabama.” We take this statement from the complaint, as the notes are not set out. The notes are described as being made payable to the order of the makers, and by them indorsed to the Rialto Guano Company of Baltimore City, and by that company indorsed to the plaintiff, and now its property. The plaintiff is described in the complaint as “a corporation duly chartered and incorporated under and by authority of the laws of the State of New York.” Among other defenses, the defendants pleaded “that the Hanover National Bank of New York, the party plaintiff in this action, is not a corporation duly authorized by law to maintain this suit.” This, although brief, contains all that is of substance in the plea of nul tiel corporation. The notes not being made payable to the plaintiff corporation by name, [274] the defendants were not estopped from disputing its corporate existence. The plea was a defense to the whole action, and devolved on the plaintiff the burden of proving its corporate existence. — Savage v. Russell, 84 Ala. 103, and authorities cited. The Circuit Court erred in striking plea No. 2 from the file. Plea No. 7, if true, amounts to a full defense to the action. Sess. Acts 1882-3, pp. 193-4; Ib. 1884-5, p. 172; Code of 1886, part 2, §§ 3153 et seq.; Campbell v. Segars, 81 Ala. 259, and authorities cited; Steiner v. Ray, 84 Ala. 93. The Circuit Court rightly overruled plaintiff’s demurrer to this plea. The record informs us there was a replication filed to plea No. 7, but that replication is not found in the record. Nor are we informed what its averments were. The bill of exceptions states it contains all the evidence, and it contains nothing from which we can infer the contents of what was relied on in answer to plea No. 7. The trial judge gave the general charge in favor of the plaintiff, and thereby ruled that the plaintiff had made out its case. If the court below reached the conclusion, from the evidence, that the sale of the fertilizer, the consideration of the notes, was made outside of the State of Alabama, and therefore was not within the influence of our statutes which require certain classes of fertilizers sold, or offered for sale, to be analyzed and tagged, he fell into an error. Every step taken in the negotiation, in the sale, in its consummation by delivery, in giving the notes for the purchase-money, and in fixing the place of payment, stamp it as an Alabama transaction, if the testimony of Johnson be true. — 3 Brick. Dig. 733, § 27; Pilgreen v. State, 71 Ala. 368; Shealy v. Edwards, 73 Ala. 175. If the conclusion was, that the notes were commercial paper, and, being held by an indorsee, they were not subject in its hands to any abatements, discounts, cross demands, or failure of consideration, which the defendants could have set up against the payee, or first holder, this, under our rulings, was equally an error. It is very true that negotiable paper, traded before maturity to an innocent, uninformed holder for value,, is not subject, in the hands of such holder, to any of the defenses enumerated above, which the maker may hold against the payee. — Cap. City Ins. Co. v Quinn, 73 Ala. 558. But, to cut off such defenses, it is not enough for such third person to present the paper, indorsed, or otherwise [275] transferred to bim. He must go farther, and show he purchased it for value before its maturity. He need not disprove notice of the alleged imperfection in the consideration. Notice is defensive, and must be proved by the defendant, if he relies on it.- — Ross v. Drinkard, 35 Ala. 434; Mayor v. Wetumpka Wharf Co., 63 Ala 611, 632. There was no phase of the testimony set out, which authorized the giving of the general affirmative charge for the plaintiff. Reversed and remanded.