Mizell v. Farmers' Bank

ANDERSON, J. This is an action upon an instrument in writing executed by the defendant and payable to the plaintiff bank, and the fraudulent representations attempted to be set np in pleas 6 and 7, on the [573] part of McClain and Bell, have no connection Avhatever with the execution or consideration of the instrument sued upon. The said pleas do not connect the matters therein set up with the contract involved in the complaint. Plea 4 may attempt to do so, bnt pleas 6 and 7 do not, by adopting as a part thereof plea 4, or otherwise. The trial court did not err in sustaining the demurrers to pleas 6 and 7. Plea 12 attempts a setoff growing out of a breach or failure of consideration of the contract sued upon, and is not good as a plea of set-off. “A set-off, as it has been well defined, is a counter demand, growing out of an independent transaction, liquidated or unliquidated —not sounding in damages merely — subsisting between the parties at the commencement of the suit.”—St. Louis Co. v. McPeters, 124 Ala. 456, 27 South. 520. “If a defendant has suffered damages, on account of a breach by the plaintiff of the contract upon which the plaintiff bases his cause of action, a plea of recoupment is the procedure by which defendant may bring the matter before the court and have his damages considered.”—Theo. Poull & Co. v. Foy-Hays, etc., Co., 159 Ala. 453, 48 South. 785. Moreover, the plea denies, in. a way, the existence of the demand claimed by the plaintiff, and a plea of set-off should confess the existence of the demand of the plaintiff and not deny the same. Plea 12 was bad, and the trial court did not err in sustaining the plaintiff’s demurrer to same. The trial court erred in giving charge 3, at the request of the plaintiff. It instructed a finding for the plaintiff unless it or some one authorized by the said bank misrepresented the contents of the paper sued on to the defendant. This charge ignored a material part of the defendant’s evidence to the effect that Reynolds, the cashier, may not have made any misrepre [574] sentations to the defendant, yet he heard and acquiesced in the representations of McClain, and became a party to same in the preparation of the paper and in attesting same, knowing that the defendant thought he was signing a note to the American Finance Company, and not a note and mortgage to the plaintiff bank. In other words, the defendant testified that, when they entered the bank, McClain called for a company note, and Reynolds, the cashier of the bank, produced a batch of notes, and was then told by McClain to make out one for the defendant to sign payable to the American Finance Company. It may be that the weight of the evidence is to the contrary; but, with this evidence in, the jury could infer that Reynolds knew that the contents or character of the paper was misrepresented to the defendant and became a party to the fraud by filling out the note to the bank instead of to the American Company, as McClain had told him to do, in the presence and hearing of the defendant. If McClain misrepresented the paper in the presence of Reynolds, the cashier, and he knew the defendant was signing same on the strength of said misrepresentations, the jury could infer that Reynolds acquiesced in the fraud, whether he made a single misrepresentation to the defendant or not, and the plaintiff would be bound thereby. In other words, there was evidence from which the jury could infer misrepresentations on the part of McClain, known to and acquiesced in by the cashier, Reynolds, and, if such was the case, the bank was bound thereby, notwithstanding Reynolds nor any other agent did not make misrepresentations to the defendant. Moreover, the charge is bad in form, as it is not predicated upon the evidence in the case. Charge 4, given for the plaintiff, is better in form than charge 3, but is subject to the first criticism of [575] charge 3, as it ignores the evidence tending to show knowledge, acquiescence, and participation by the cashier of the bank, whether he made any representations to the defendant or not. There was no error in giving charge 1 for the plaintiff. It was the general charge as to plea 8, and which was the plea of non est factum, and the defendant, as a Avitness, admitted signing the instrument in question. Charge 2, given for the plaintiff, should have been refused. There was evidence from which the jury could infer that, notwithstanding the defendant signed the instrument in question, there Avas no consideration received by him from the plaintiff, or paid to another at his instance or request or Avith his consent. There was no error in permitting the certificate of deposit in evidence, or the application by the defendant for the purchase of capital stock in the American Finance Company. It may be that the trial court did not err in not permitting the defendant to say Avhether or not he signed a mortgage; but there Avas error in refusing to let him testify as to whether or not he signed the paper in question, as the plea of non est factum was in, and he had the right to tell whether or not he signed the paper. The error, however, Avas cured by the subsequent admission of the defendant, Avhen a witness, that he signed said paper. For the errors heretofore designated, the judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, G. J., and Mayfield and de Graffenried, JJ., concur.