Wright v. Forgy

DOWDELL, J. To the complaint in this case the defendant filed' a plea of non est factum in Code form, No. 33, page 949 of the Code. The replication to this [392] plea contained nothing more in substance than what was alleged in the complaint, namely, that the bond was executed by the defendant, and was in effect taking issue on the plea. And so as to the rejoinder to the replication. Nothing was set up therein hut wliat was available to tile defendant under his plea. As the case was tided by the court without the intervention of a jury, we need only deal with the assignment of error relating to the rendition of the judgment. On the trial there was evidence that at the time of the execution of the note, the plaintiff in this case, who had consented at the instance of the defendant to go on the bond as his surety, was requested by the defendant to sign his name to the same, as he could not write, which was then done in his presence by the plaintiff, his surety. At this time there was no antagonistic relation between this plaintiff, Mrs. Forgy, and the defendant, and therefore the principle in Carlisle v. Campbell, 76 Ala. 247, has no- application. It was perfectly competent and legal for the surety to act as an agent for the principal in signing his name to the bond in his presence and at his request, and when this was done it was as perfect and complete an execution as if the defendant himself had subscribed his own signature, or being unable to write, had made his mark, and the same being attested by a witness who could write his name.—Lewis Admr. v. Watson, 98 Ala. 481. The fact that the defendant did make his mark after his surety had signed his, defendant’s, name to the bond or contract at defendant’s request-, neither took from nor added anything to the validity or efficacy of the contract, its execution, so far as his signature to it was concerned, having been accomplished when his name was signed thereto at his instance by the surety; and the bond or contract having been thus executed, was as efficacious as to the clause contained therein, waiving exemptions as to personal property, as it was as to his promise to pay the debt. —Brown v. Bamberger, Bloom & Co., 110 Ala. 342. There was sufficient evidence before the trial judge to warrant him in reaching the conclusion that the defendant authorized Mrs. Forgy to sign his, defendant’s, [393] name to the note, and we would not feel warranted in disturbing such a finding as to tbe facts by tbe trial judge, who bad tbe witnesses before Mm, with tbe opportunity of seeing and bearing them and judging of their credibility. We find no reversible error in tbe record, and the-judgment of tbe city court is affirmed.