Haas v. Commerce Trust Co.

SOMERVILLE, J. — The pleadings in this case embracing 15 special pleas, 36 special replications, and several hundred grounds of demurrer, are too multifarious to be considered in detail, and, in view of the simplicity of the. evidence, were wholly unnecessary for a fair and orderly presentation of the issues involved. We have analyzed and classified these pleadings with patient care, and we are clear in the conclusion that, whether there was or was not error in any of the various rulings of the trial judge Avith respect to- them, nevertheless, as the material issues were actually tried, there was no error as to the pleadings Avhicli was at all prejudicial tO' the appellant, (1) 1. A payee’s indorsement of a promissory note to a third party is unquestionably an assignment of his property in the note. Hence there was no variance betAveen the allegation of an assignment in writing to the plaintiff and the proof of a regular indorsement to him. —Wells v. Cody, 112 Ala. 278, 20 South. 381; Lyons v. Divelbis, 22 Pa. 185, 189. [677] (2) 2. The indorsements on the notes, coupled with the plaintiff’s possession of them at the time of suit, prima facie showed title and right of action in the plaintiff. The plea denying the plaintiff’s ownership was without support in the evidence, and was properly ignored. (3) 3. Accepting as true the defendant’s contention that one share of the stock delivered to his son was transferred to Mrs. Guggenheim at Guggenheim’s suggestion as to its necessity, in order to conform to the laws of Missouri as to the number of stockholders required, this cannot he regarded as a substantial violation of the stipulation upon which the defendant asserts he conditioned his indorsement, viz., that each party was to have half interest in the business. (4) 4. Nor did the arrangement made between Guggenheim and B. L. Haas as to the amount of salary to be drawn out and used by each — $200 a month by the former, and $125 a month (with a credit of $75 a month to go on his debt to Guggenheim) by the latter — violate the alleged stipulation that the parties should participate equally in the profits. (5) 5. The only real and material issues of fact developed on the trial of the case were as to whether the defendant stipulated, as a condition to his liability as indorser, that the proceeds of the notes should be directly used for the cash purchase of his son’s .half interest in the furniture business. The trial judge explicitly charged the jury that if there was such a stipulation, and the funds were not so nsed, the plaintiff could not recover. There was in fact weighty evidence to show that the defendant was fully advised as to the manner in which the.purcha.se was to be made and the proceeds of the notes to be disposed of, as actually done, and that [678] he indorsed the notes. The issue was fairly presented to the jury, and they evidently adopted this view of the evidence. (6) 6. The court properly allowed the plaintiff to ask Guggenheim if the note he indorsed to the plaintiff as collateral security was also- subsequently, indorsed by Guggenheim to C. P. Fresenius. This was merely for the purpose of explaining the presence of Mrs. Fresenius’ indorsement on the back of the note. (7) 7. The indorsement of these notes by the plaintiff “to any bank or banker for collection” did not, in the absence of evidence showing delivery to and possession by some bank or banker, divert the plaintiff’s legal ownership of the notes. There being no such evidence, the notes were properly admitted as the property of the plaintiff. (8) 8. No objection was interposed to the competency of the notary’s certificate of protest to show notice of dishonor to' the defendant as indorser, and the trial court cannot be put in error for admitting it, even were it objectionable on any ground. (9) 9. The introduction of copies of the letters written by Guggenheim to the defendant, and by R. L. Haas to Guggenheim, was proper as part of the cross-examination of the defendant and R. L. Haas, and in explanation of parts of their testimony in chief. (10) 10. The minutes Of the corporation showing the reorganization and adjustment of the business by Guggenheim and Haas were relevant to the issues made by the pleas, and were competent evidence of the facts recited, as to which, indeed, there was no dispute. (11-13) 11. The notes sued on were executed and became contracts in Kansas City, Mo., and were governed by the laws of that state. Accepting as true the [679] testimony of the defendant and his son that the notes were delivered to the payee with the rate of interest left blank, and that nothing was said as to the interest, the written provision in the notes for “interest at-per cent.” would unquestionably carry interest at 6 per cent, by implication of law; that being the legal rate of interest in Missouri when not otherwise stipulated. The Missouri rate Was properly shown by the Alabama Sessions Acts of 1911. The trial judge properly instructed the jury that, in any view of the evidence, the payee’s insertion of the figure “6” in the blank interest space in the notes was not a material alteration, since their legal import was not thereby changed. Nor would parol evidence have been competent to contradict the stipulation for interest, though it seems no testimony was offered having such a tendency. The giving and refusal of instructions by the trial judge were in harmony with the principles and conclusions expressed in the foregoing -opinion; and, there being no error in the record prejudicial to the appellant, the judgment will be affirmed. Affirmed. Anderson, C. J., and Mayfield and Thomas, JJ., concur.