Davis v. McWhorter

TYSON, J. — The complaint declared on a bond alleged to have been executed by the defendants on the 14th day of July, 1897, and payable on the 1st day of November, 1897, in which the defendants agreed to pay a reasonable attorney’s fee for its collection. The instrument sued on was lost after this suit was commenced [572] and after the trial in the justice court. Upon the trial in the city court upon appeal the attorney for the plaintiff was examined to prove its contents. It appears from his testimony that he had the paper sued upon in his possession at the time he drew the complaint, and that it was introduced in evidence upon the trial before the justice of the peace. The contents of the paper as established by his evidence, which was undisputed, was a promissory note executed July 1, 1897, and due on or by October 1st next. A bond is an instrument under seal and varies in other respects from a promissory note. “The distinction between sealed and unsealed instruments is not altogether destroyed by the Code. To the words promissory note the laAV attaches a distinct meaning which does not include a bond or instrument under seal. Under the mercantile Iuav and the statute of Anne, it was held, that the instrument being under seal deprived it of the character of a promissory note, and consequently of its negotiable character. A-bond is sometimes designated as a note under seal, and bill single is sometimes used to designate indiscriminately an instrument without condition, whether with' or without .a seal. But a bond cannot, with strict legal propriety, be termed a promissory note, and they have always been distinguishable in the incidents Avhich attach to them.” — Reed v. Scott, 30 Ala. 640; Muse v. Dantzler, 85 Ala. 359; McCrummen v. Campbell, 82 Ala. 566. ITad the cause been tried by the court Avith a jury, the defendants would have been entitled to have the court instruct the jury affirmatiArely to return a A^erdict for them, and its refusal to have done so would have been error for which this court Avould have reversed the judgment. — Phillips v. Americus Guano Co., 110 Ala. 521. This cause was tried by the court Avithout a jury, and we are authorized to render such judgment as the lower court should haAe rendered. But as the plaintiff may amend his complaint if he chooses to do so, to properly describe his cause of action, we will reverse and remand the cause so as to afford him this opportunity. Reversed and remanded.