Faircloth-Byrd Mercantile Co. v. Adkinson

SIMPSON, J. This suit is by the appellee against the appellant; the first and third being common counts, and the second being on the acceptance of an order. Defendant demurred to- the second “paragraph” of the complaint, but in its assignments refers to the count, and the court treated it as a demurrer to the second count and overruled it. While this is irregular, yet, as no point was made on the wording of the demurrer, we will treat it as the court did. The insistence of the appellant is that the demurrer should have been sustained to said second count, because it does not allege that the acceptance of the order was in writing. There was no error in overruling the demurrer. This court has held that, in declaring on the acceptance of a bill of exchange, it is not necessary to allege that it is in writing, although that must be prov346 fed.—Whilden & Sons v. M. & P. Nat. Bank, 64 Ala. 1, 29, 38 Am. Rep. 1. Defendant then interposed a plea stating that the said order was not accepted in writing and signed by the defendant, the drawee. A demurrer was interposed to this plea and sustained by the court. In this there was error. This court has held that an order drawn by one person, upon another, in favor of a third person, for a specific amount, is a “bill of exchange,” and that an acceptance, to be binding, must be in writing and signed as the statute requires. — Anderson & Co. v. Jones, 102 Ala. 537, 538, 539, 14 South. 871; Code 1886, § 1766; Code 1896, § 880. While the order, itself, and the testimony as to its verbal acceptance, were not admissible in order to fix a. liability on the order, yet, in view of the testimony tending to show an original promise to pay the rent of the mules, if plaintiff would let Hinson have them, and of the further testimony tending to show that when the account was presented to the defendant’s president he requested the plaintiff to get a statement from Hinson, as to the amount due, said evidence was properly admitted as applicable to the first and third counts of the complaint, and as tending to show that he accepted the statement made by Hinson, as showing the amount due. For the same reason the second order for $37.50 was admissible; but its probable force should have been limited and explained. For reasons stated the court erred in refusing to give charge 3, requested in writing by the defendant. What has been said sufficiently indicates the law of this case, and it is unnecessary to mention specifically the other charges refused and given. [347] The judgment of the court is reversed, and the cause remanded. Reversed and remanded. Dowdell, C. J., and Anderson and Sayre, JJ., concur.