Penton v. Williams

SIMPSON, J. This' action by the appellant against the appellee is on a writing in the form of a promissory note, in which is also included a mortgage; several of the common counts being added for medical services claimed to have been rendered by the plaintiff to a brother of the defendant. This instrument sued on purports to be signed by A. J. Williams and the de- his fendant, but the defendant’s name has X between the mark “Joe” and “Williams,” and there is no attesting witness. When this case was before this court at a previous term, it Avas held that the count did not show that there was no Avitness to the note; also that section 1 of the Code of 1896 does not invalidate instruments signed by mark, without a. witness, when the contract is not required to be in writing, and that, there being no plea of non est factum, the instrument Avas admissible.— Penton v. Williams, 150 Ala. 153, 43 South. 211. On the second trial of the case an amended complaint was filed, and the plea of non est factum was interposed; also a plea of the statute of frafids. ; The only wituess to the execution of the note is the plaintiff himself, the payee, who testifies that he wrote the note, signed the name of the defendant, and made, his mark; the defendant touching the pen staff. The plea of non est factum being interposed, the burden rested on the plaintiff to prove the execution of the instrument before it could be received as evidence. This [607] court has held that the promisee cannot become the agent of the promisor, for the purpose of signing his name to the contract. — Carlisle, Jones & Co. v. Campbell, 76 Ala. 247, 249; Levy v. Bloch & Co., 88 Ala. 290, 293, 294, 6 South. 833. In the case of Wright v. Forgy, 126 Ala. 389, 392, 28 South. 198, 199, the principal’s name was signed by the surety, before the surety had signed; and the court differentiated it from the Car-lisle v. Campbell Case, supra, stating that “at this time there was no antagonistic relation between this plaintiff and the defendant.” In the case of Johnson & Co. v. Davis, 95 Ala. 293, 10 South. 911, the name of the grantor in the mortgage was written by the grantee, but the mark was make by the grantor himself, and witnessed by a third party. Under these decisions the execution of the instrument in question wras not legally proved, and it Avas properly excluded from the testimony. There wms no reversible error in the action of the court in sustaining objections to questions, on rebuttal, to the plaintiff as a Avitness, and embodied in assignments of error numbered 3, 4, 5, and 6. The matters inquired of in these questions Avere not in rebuttal of anything testified to on cross-examination, and the ansAvers could have been only a repeating of what had been gone through Avith in the examination in chief. Moreover, wrhat Avas said by the defendant, at the time of the supposed execution of the note, conld have no bearing on its validity, as, from Avhat we have said, the note Avas never executed legally, and nothing could impart validity to it. The question to the plaintiff, as a Avitness, on rebuttal, “Had you any contract with the defendants for further services for the boy and for services you had already rendered the boy other than the operation, prior to the time you made the contract with [608] Joe, that you .have testified about?” was not in rebuttal to anything that had been brought out on cross-examination, .and the objection to -it was properly sustained. The question to the witness (plaintiff) on rebuttal, “Did Joe Williams make any claim, at that time, that he did not owe the debt?” should have been allowed. The witness had testified on cross-examination that he went 'over the items of the account, after the services were rendered, with the defendant. On rebuttal he was allowed to explain that conversation, by saying that he told defendant that he wished to be reasonable, with him, and that he would reduce the debt which he owed, and that the debt he was talking about was the debt which the defendant owed. It was competent, then, to inquire whether, when the matter was thus presented to him, he made any claim that it was not his debt, as bearing upon the question whether or not the defendant had made such an independent promise as made it his debt. There is no error in sustaining the objection to the question to the witness W. M. Lackey as to what was a reasonable attorney’s fee, as the only claim to recover for an attorney’s fee, is under the instrument, which we have held was not admissible in evidence. There was no error in sustaining the objection to the question to the witness A. J. Williams as to whether he had offered to compromise the debt for $75, as that had no relevancy to the question as to whether the defendant, Joe Williams, owed the debt. From what has been said in regard to the written instrument, it results that there was no error in giving charge No. 1, at the request of the defendant, being the general charge as to the first count of the complaint. While charge No. 2, given on request of the defendant, may have been misleading, ■ yet an explanatory charge might have been asked; and the court will not he placed in error for giving it. [609] For the reason that there was evidence having some tendency to prove the counts referred to, it was error to give charges S, 5, and 6, on request of defendant. There was no error in giving charge No. 4, on request of the defendant. There was no error in the refusal to give the general affirmative charge in favor of the plaintiff. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. Dowdell, C.' J., and McClellan and Mayfield, JJ., concur.