Opinion
7 Div. 975.
June 30, 1933. Rehearing Denied September 12, 1933.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Action by Bertie Bell Vanzandt against H. E. Adams and others. From a judgment for plaintiff, the named defendant appeals.
Affirmed.
Certiorari denied by Supreme Court in Adams v. Vanzandt, 150 So. 808.
Appellant (defendant) filed the following plea:
"Comes the defendant, H. E. Adams, and for answer to the complaint filed in this cause, says:
"She avers that she did not execute the note as maker thereof, nor did she authorize anyone to execute the note for her, and she further says that she signed the note, the basis of this suit, merely as a witness, and to this plea she makes oath."
McCord McCord and Hood Murphree, all of Gadsden, for appellant.
The plea of appellant that she did not sign the note as maker and proof of this fact were not contrary to the rule against varying the terms of a written contract by parol evidence. Jones v. First Nat. Bank, 296 Ala. 203, 89 So. 437; White v. Kahn, 103 Ala. 308, 15 So. 595; Dean v. Lyde, 223 Ala. 394, 136 So. 857; 22 C. J. 1222. Even though plaintiff be a holder in due course, this did not prevent defendant from averring and proving that she did not sign the note for any other purpose than to witness the previous signatures. Spencer v. Blanke Mfg. Co., 220 Ala. 350, 124 So. 904; Whitehead v. Coker, 16 Ala. App. 165, 76 So. 484. Defendant's plea was the issue on which the case was tried. It was not challenged by demurrer, and, having been proved, it was error to give the affirmative charge for plaintiff and refuse such charge to defendant. Parties have the right to try their causes on the issues they make whether material or not. Ala. F. I. Co. v. Denson, 208 Ala. 337, 94 So. 311; Glass v. Meyer, 124 Ala. 334, 26 So. 890; Clinton M. Co. v. Bradford, 192 Ala. 586, 69 So. 4; Peabody v. Whitman, 6 Ala. App. 182, 60 So. 470. Pleading in short by consent without more only raises the issue of a general traverse of the complaint. Wahouma Drug Co. v. Clay, 193 Ala. 79, 69 So. 82.
Culli Culli, of Gadsden, for appellee.
A payee of a note may be a holder in due course, and plaintiff in this case under the undisputed facts is a holder in due course. Code 1923, §§ 9078, 9083; Ex parte Goldberg Lewis, 191 Ala. 356, 67 So. 839, L.R.A. 1915F, 1157; Dinsmore v. Cooper, 212 Ala. 485, 103 So. 460. Parol testimony is inadmissible to vary the terms of a written instrument, especially a negotiable instrument. Day v. Thompson, 65 Ala. 269; Dinsmore v. Cooper, supra; Holczstein v. Bessemer T. S. Bank, 223 Ala. 271, 136 So. 409.
This was a suit by appellee against appellant and two others — who do not appeal, but are brought before this court under and in pursuance to the terms of Code 1923, § 6143 — based upon a promissory note, etc., signed by appellant, etc., and payable to appellee.
The note in question was duly offered in the evidence, and it appeared to be regular in all respects; was, apparently, duly signed as principal by appellant and her two comakers. She does not deny signing same; admits her signature as and where it appears; admits everything necessary to corroborate the case made by appellee's testimony against her, which fully entitled appellee to recover, etc., except she says that, while her name is regularly and at the proper place affixed to the note as a comaker, she signed, in fact, but as a witness to the other signatures appended along with her own. A special plea was interposed by appellant apparently intending to set up this contention as a defense on her part to the suit. But said plea did not in fact set up said contention; that it did not do so is probably the reason appellee did not see fit to demur to said plea, because said contention — whether true or not — could not successfully be interposed as a defense to the action here. The plea as drawn and filed had no support in the evidence.
In the case of Holczstein et al. v. Bessemer Trust Savings Bank, 223 Ala. 271, 136 So. 409, 414, our Supreme Court used this language, applicable here, to wit: "It is familiar law that in the absence of fraud in procuring the signature to a written contract by misrepresenting or concealing its contents, it cannot be impeached by proving a different contemporaneous agreement, or because the party signing was ignorant of its legal effect. If this were not the law, 'contracts would not be worth the paper on which they are written.' "
There being no legal evidence contrary to the right, etc., of appellee to recover, it was proper for the court to give, as it did, the duly requested general affirmative charge, with hypothesis, etc., to find in her favor.
The judgment is affirmed.
Affirmed.