McAfee v. Glen Mary Coal & Coke Co.

McCLELLAN, J. — Action on promissory note alleged to have been executed by W. W. McAfee, the defendant, and D. W. and D. M. Kogers who are not sued. The pleas were: (1.) thai defendant “never promised or undertook in the manner and form alleged,” (2.) “that there was no consideration to defendant for the note or obligation which is the foundation of this suit,” and (3.) “that there is a failure of consideration in the note or obligation the foundation of this suit,” The action of the trial court in sustaining demurrers to the 2nd and 3rd pleas is assigned as error. The 2nd plea was manifestly bad in that it fails to negative consideration moving to defendant’s co-makers of the note, which, of course, would support his obligation though he personally received nothing. And both the 2nd and 3rd pleas were bad in that they are not interposed “in short by consent” and state mere conclusions of law and not the facts relied on by the defendant in defense of action. — Carmelick, v. Mims, 88 Ala. 335. Affirmed.