Hall v. Tanner & DeLaney Engine Co.

CLOPTON, J. The facts clearly shown by the evidence, and admitted by defendant, are: That he originally bought the engine, boiler and other machinery, for which the notes sued on were given, from the agent of the plaintiff, gave his individual notes for the price, less one hundred dollars paid in cash, and promised to secure the same by mortgage on real estate. This mortgage was not executed; but afterwards, the agent, as he testified, delivered the notes to Mobley, whom plaintiff had taken as a partner in the business, and received [365] from him the notes sued on, signed by Hall & Mobley; and that this change of notes was made by request of defendant, who promised to execute a mortgage to secure the firm notes. A mortgage, certified by an authorized officer to have been executed by defendant, and which he acknowledged on the trial he had had recorded in the proper office, was forwarded to the agent; but, on account of some technical objection, was returned by him to be perfected. The mortgage introduced in evidence, recited that the defendant was a member of the firm of Hall A Mobley, and was given to secure the firm notes. Defendant, however, testified that the notes sued on were not signed by him, nor by any one authorized to bind him in the premises, and that Mobley was not his partner, but an employé. Other than by this general statement he did not contradict the testimony of the agent, as to the facts and circumstances under which the notes sued on were signed by Mobley and accepted by the agent. On this evidence, the court instructed the jury, that though the notes sued on were not signed by defendant, or by any one authorized to bind him in the premises, yet, if he bought the engine, boiler and machinery from the plaintiff, and the same had not been páid for, plaintiff was entitled to recover their value under the common count. The only objection urged to the charge by counsel is, the failure of plaintiff to surrender, or offer to surrender, the notes given for the machinery, which, it is insisted, is necessary to the maintenance of an action to. enforce the original debt. A-note given by a debtor for a debt, whether pre-existing or created at the time, does not operate to discharge the debt, unless there is an agreement to receive it. in payment. Prima facie, it is accepted as collateral, or additional security, and, in the absence of an agreement to receive it as payment, the creditor, if the note remains unpaid, may enforce the original debt by action. As the law will not permit him to retain the note, and at the same time recover on the original debt, he must produce the note, and offer to surrender it on the trial.—Mooring v. Mobile, &c., Ins. Co., 27 Ala. 254; Myatts v. Bell, 41 Ala. 222; Keel v. Larkin, 77 Ala. 493. There being no evidence that the individual notes of defendant were accepted as payment, especially as the mortgage to secure them was not executed, the presumption prevails, that they were taken only as additional security; and, as defendant denies that Mobley was a partner, or that he was authorized to sign the notes sued on, and bind him, their acceptance in lieu of the notes of defendant, under the circumstances, does not operate to discharge the latter, or the original debt. We are not informed whether the objection to the [366] charge is based on the failure to surrender the notes of defendant, or the notes of Hall & Mobley. If the former, they were delivered, if the evidence be believed, to Mobley, by request or direction of defendant; if the latter, they were produced on the trial, and offered in evidence. ' No further offer to surrender the notes was requisite to revive the liability on the original debt; no injury has or can accrue to defendant by reason thereof. By the provisions of the charter, plaintiff was incorporated for the purpose of manufacturing engines, boilers, and other machinery of iron and brass, “and of disposing of and dealing in the same.” Under the charter, plaintiff possessed the power to make valid contracts for the sale of its manufactured machinery, not only in the State of its creation, but in any other State where such contracts are not prohibited by the local law. There was no error in the refusal to give the charge requested by defendant. Affirmed.