Carrington v. Odom

SHARPE. — The second count of the complaint sets out a note alleged to have been made to the plaintiff by the Jasper Stone Quarry Company, a corporation, and endorsed in blank by the defendants’ testator and others before delivery. The note is as follows: $708.50. Jasper, Ala., Eeb. 6, 1895. On the first day of January 1896, after date we promise to pay to the order of James Odom, Sr., seven hundred and eight & 50-00 dollars, value received, at the Jasper Trust Company’s office, Jasper, Ala., and all right to claim any exemption under the constitution or laws of this or any other State as against this debt is hereby expressly waived by the makers and endorsers of this note. “Jasper Stone Quarry Company, per F. A. Gamble, President.” It is not probable that the parties in using the Avords “at the Jasper Trust Company’s office, Jasper, Ala.,” intended to state the unimportant fact of Avhere the consideration was receiAred. To haAre any material use in expressing the terms of the contract they could only have reference to the place where the note was to be paid and must be given effect as designating that place. So construed the note is payable at a place certain within the requirements of the statute defining negotiable instruments and is subject to the rules governing commercial paper. The second count of the complaint shoAvs that the endorsement declared on was placed on the note before its delivery. The regular endorsement of a negotiable note which imports a contingent liability of the endorser and which [533] is not variable in construction by parol evidence, occurs only after its full execution and delivery to the payee. In such case, unless excuse or good reason for omission be shown, to bind the endorser the note- must be presented at maturity at the designated place of payment and notice of dishonor given him in reasonable time. As to the effect of an endorsement made before delivery such as is averred in the second count of the complaint, the authorities differ; many holding that in such case the endorser is a maker of the note and as such is bound primarily for its payment. The contrary rule has been stated by this court in several cases involving such irregular indorsements where'it was considered that the obligations imported by them were of the same kind and dependent upon the same conditions in respect of presentment and notice as where the endorsement is made after delivery. — Milton v. DeYampert, 3 Ala. 648; Hooks v. Anderson, 58 Ala. 238; Price v. Lavender, 38 Ala. 389. We understand that such is the rule in this State, which is applicable prima facie to a note so endorsed, but that it does not prevent the holder from showing by allegation and proof that one writing his name in blank on the back of a note at its inception did so in execution of the note as a maker; for it is certain that a note may be signed upon its back. — See Vinton v. Ledbetter, 108 Ala. 644; Eudora Mining Co. v. Barclay, 26 So. Rep. (Ala.) 113. The averment in the second count of due and legal presentment for payment to the makers of the note is equivalent to an averment that the'presentation was at the place designated in the note, that being the place agreed on where due and legal presentment could be made. The averment though somewhat in the form of a conclusion, is by analogy to the Code forms, sufficient. — Battle v. Weems, 44 Ala. 105. The pleas are each interposed to the complaint as a whole. The statute of frauds as set up in the third and fifth pleas is without application to «the causes of action shown in the common counts and therefore those pleas do not answer the whole complaint. It was a sufficient compliance with the statute of non-claims if the claim against the testator’s estate was pre [534] sentecl within the prescribed time to one of the executors. — Mardis v. Shackleford, 4 Ala. 493. The issue tendered by the sixth plea was that the claim ivas not presented to both of them and the plea Avas therefore subject to the demurrer. The evidence in the cause is without contradiction. The Jasper Trust Co. had a banking office and Gravlee was its cashier and a notary public also. At maturity the note was in GraAdee’s possession and the proceedings to effect demand for payment and notice of dishonor Avere had through him. Protest though not necessary to' bind the endorser, Avas authorized by laAV and the certificate is by the statute eAddenee of the facts contained in it.; — Code, § 3030; Dunn v. Adams, 1 Ala. 527; White v. Keith, 97 Ala. 668. The bank being the place fixed by the paper for presentment, Ave think the certificate of presentment at plaintiffs request, together Avith Gravlee’s possession and his position as notary and as cashier are sufficient to' raise the inferences both of Gravlee’s agency to receive payment, and that the note Avas at the bank at maturity. It is unimportant that the note Avas not presented to the bank. Under the circumstances “the legal requirements as to presentment and demand are complied with if the note is in the bank at the time it falls due in the hands of the cashier avIio was ready to receive the money.” Roberts v. Mason, 1 Ala. 373. The plaintiff and defendants resided in different towns and therefore it Avas permissible for the notary to give notice of dishonor through the mail. — Philipe v. Harberlee, 45 Ala. 607; Gindrat v. Mec. Bank, 7 Ala. 324. That mode of giving notice being authorized by law, proof as to custom of giving notice in the same Avay Avas mere redundancy. Notice to one of the executors was sufficient to bind the testator’s estate. — 3 Rand. Com. Paper, § 1244. It is of no importance that the word “as” or its equivalent was not used before the Avord executor in addressing the notice. The object of the notice being simply to convey information of dishonor, any words Avbich had that effect were sufficient.' The foregoing will show that the charges 1 and 5 requested by the defendants in assuming that the mailing [535] of notice was not authorized unless by custom, were bad, and that charges requested numbered. 2 and 3 were susceptible of the construction that notice to both the executors was essential and were therefore calculated to mislead. The evidence without conflict shows that the plaintiff was entitled to recover under the second count; therefore if there was error in the parts of the oral charge excepted to, it was not injurious to the defendants. The failure to enter the judgment so as to be leviable de bonis testatoris was an irregularity but it amounts only to a clerical error which does not authorize a reversal. — Code, § 3334. The judgment will by an appropriate order be here corrected at appellants’ cost. — 1 Brick. Dig. 82, § 184; Guilmartin v. Urquhart, 82 Ala. 570; Boykin v. Cook, 61 Ala. 472. As corrected the judgment will be affirmed. Affirmed.