Weinstein v. Citizens Bank

BROWN, J. (1) This is an action of assumpsit on a promissory note, and the defendants are described in the summons and the caption of the complaint as “Weinstein Bros., and L. Weinstein and E. Weinstein, partners trading under the firm name of Weinstein Bros.” The first and second counts of the complaint as originally filed aver that the note sued on was executed by “the defendants,” and the third count avers that the note sued on was executed by “Weinstein Bros.” Before the trial was entered upon, the complaint was amended by separate paper filed, adding to each of the counts the following averments: “Plaintiff avers that the note sued on and mentioned in the first, second, and third counts of the complaint was executed and signed by Weinstein' Bros,, in their partnership or firm name L. Weinstein.” When these averments are construed together and most strongly against the pleader, there is an element of uncertainty as to Avhether there are two firms or one being sued, and as to Avhether the Weinstein Bros, who have adopted the firm name of “L. Weinstein” are identical with the partnership composed of L. Weinstein and E. Weinstein, doing business under the firm name of “Weinstein Bros.;” and hence an element of uncertainty as to Avho executed the note sued on. The demurrer to' [557] the complaint was well taken and should have been sustained. “An important requisite in all pleading is certainty. This requisite implies that the matter pleaded must be clearly and distinctly stated, so that it may be fully understood by the adverse party, the counsel, the jury, and the judges, and especially (as regards the declaration) that the defendant may be enabled to plead the judgment, which may be rendered in the cause in bar of any subsequent action for the same cause.”—Birmingham Ry., L. & P. Co. v. Nicholas, 181 Ala. 498-499, 61 South. 361, 363. (2, 3) If, as a matter of fact, Weinstein Bros, was a partnership composed of L. Weinstein and E. Weinstein, and it was the purpose of the plaintiff to sue so as to subject the individual property of the partners, as well as the firm property, the suit should be against L. Weinstein and E. Weinstein, partners in business trading under the name of Weinstein Bros., or against Weinstein Bros., a partnership composed of L. Weinstein and E. Weinstein, and the individuals composing the firm, L. Weinstein and E. Weinstein (Baldridge, et al. v. Eason, 99 Ala. 516, 13 South. 74; Bolling & Son. v. Speller, 96 Ala. 269, 11 South. 300), and when thus sued any evidence of debt by contract which would be admissible in a suit against the firm by the common name would be admissible (Baldridge, et al. v. Eason, supra; Ladiga Sawmill Co. v. Smith, 78 Ala. 108; Shapard v. Lightfoot, 56 Ala. 506). (4, 6) The defendants, aside from the general issue, interposed several pleas setting up that there was no consideration for the execution of the note sued on, failure of consideration, breach of warranty as to the subject of the transaction in which the note was given and out of which the consideration for its execution [558] arose, alteration of the contract, etc. — defenses, appropriate to suit on a non-negotiable note.—Tabor v. Peters, 74 Ala. 90, 49 Am. Rep. 804; Brown v. Freeman, 79 Ala. 409. The second, plea, in these words,, “there was no consideration for the execution of the note described in said complaint,” was in good form and stated a good defense to a note not protected by the law merchant.—Kolsky v. Enslen, 103 Ala. 97, 15 South. 558; Giles v. Williams, 3 Ala. 316, 37 Am. Dec. 692; Cochran v. Burdick Bros., 7 Ala. App. 274, 61 South. 29. The court sustained the following, among other grounds of demurrer to this plea: “Each count of the complaint declares on a note governed by the commercial law and purchased by plaintiff in due course of business, before maturity, for a valuable consideration, without notice of any defense thereto, and the facts set forth in said plea are not available [as a] legal -defense to said note.” Each count of the complaint declares on a note payable to the “American Manufacturing Company at Lexington, Tennessee.” When a note is not made payable to a fictitious, or non-existing, person, which fact must be known to the person making it so payable, or when the payee does not purport to be the name of a person, or when the only or last indorsement is in blank, it is essential to its character as a negotiable instrument that it be made payable on its face to bearer, or to a named person or bearer, or to order of a named payee (Code of 1907, §§ 4958 [4], 4965, 4966), and “it is elementary, of course, that the indorsee of a negotiable promissory note who seeks protection as a bona fide purchaser against such defenses set up by the maker, in a suit on the note by the former against the latter, is required to plead it.”—German-American National Bank v. Lewis, 9 Ala. App. 352, 63 South. 741. Otherwise stated, if the plaintiff desires to cut off the right of the [559] maker to plead suck secret defenses, it must affirmatively appear from the averments of the complaint that the instrument sued on is one entitled to protection as a commercial paper. The better practice has been pointed out in the following cases: German-American National Bank v. Lewis, supra; Slaughter v. First National Bank, 109 Ala. 162, 19 South. 430; Alabama National Bank v. Halsey, 109 Ala. 208, 19 South. 522; First National Bank v. Sproull, 105 Ala. 280, 16 South. 879. (7, 8) As we have shown the complaint does not affirmatively show that the note sued on is entitled to protection as a commercial paper, and the demurrer taking this point should have been overruled as to plea numbered 2, and while pleas 3, 4, and 5 may be'demurrable, they were not subject to the objections pointed out by grounds 3, 4, 5, 6, and 9, and grounds 1, 2, 7, and 9y2 were general demurrers and, for that reason, should have been overruled. The seventh plea does not set out the substance of the contract detached from the note, nor aver that a material alteration was made in the contract as executed, and the demurrers taking the point were properly sustained. For the errors pointed out, let the judgment be reversed. Beversed and remanded.