Opinion
5 Div. 974.
May 17, 1928. Rehearing Denied June 7, 1928.
Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.
Lawrence F. Gerald, of Clanton, for appellant.
When the instrument sued on is in terms payable to order, it must be alleged that the payee has indorsed the note, in order to show that he has parted with the legal title. The averment that the note has been transferred and assigned is insufficient, and the overruling of demurrer to such a count is error. Clayton v. Bank, 204 Ala. 64, 85 So. 271; Wilson v. Weaver, 16 Ala. App. 249, 77 So. 238; Young v. Woodliff Co., 147 Ala. 686, 40 So. 656; Ex parte First Nat. Bank, 206 Ala. 394, 90 So. 340. The affirmative charge should not be given for a party where there is evidence adverse to such party. Crim v. L. N. R. Co., 206 Ala. 110, 89 So. 376; Bromley v. B'ham. M. R. Co., 95 Ala. 397, 11 So. 341; Avary v. Perry Stove Co., 96 Ala. 406, 11 So. 417; Sanders v. Edmonds, 98 Ala. 157, 13 So. 505; Am. Ry. Ex. Co. v. Henderson 214 Ala. 268, 107 So. 746; McGahey v. Albritton, 214 Ala. 279, 107 So. 751.
G. C. Walker, of Clanton, and L. H. Ellis, of Columbiana, for appellee.
The allegation that the note was transferred and assigned to plaintiff bank and that said bank was the owner thereof covers every ingredient of indorsement, and showed the passing of the legal title. 1 Words and Phrases (2d Ser.) pp. 311, 559, 566, 567; 4 Words and Phrases (2d. Ser.) 977; 8 Words and Phrases 7064. There was no evidence of payment of the note, and plaintiff was entitled to the affirmative charge.
The judgment entry shows that this case was tried on count 2 of the complaint, which makes it unnecessary to consider the defendant's demurrers to other counts. From aught appearing, the note mentioned in count 2 is not commercial paper, and the allegation that it was the property of plaintiff was sufficient. Clayton v. Bank of East Chattanooga, 204 Ala. 64, 85 So. 271. There was proof also that the plaintiff was the beneficial owner. If, after the note was introduced, it was shown to be commercial paper, and that the suit should have been brought by the legal owner, this point should have been raised by an objection to the evidence as for a variance, and could not be visited upon the demurrer to count 2. Moreover, the record discloses that the plaintiff was both the legal and beneficial owner. The note was delivered to the plaintiff by the payee, and was duly indorsed.
We do not think that the trial court erred in giving the plaintiff the general charge. The only pretense or claim of a payment was that the drafts or some of them given the plaintiff by the Lyman Company should have been credited on the note, but Lyman and plaintiff's agent both testify that the note had not been paid, and that the drafts in question were authoritatively credited to other debts of the Lyman Company, and not the note. Moreover, the charge did not instruct for any particular sum, and the plaintiff was entitled to same, if the undisputed evidence showed that anything was due upon the note.
The point that so much of the count as claimed an attorney's fee was subject to demurrer is so wanting in merit that a discussion of the question can serve no useful purpose.
The judgment of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.