Opinion
8 Div. 7.
May 17, 1917.
Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.
William Stell, of Russellville, for appellant. Jackson Deloney, of Tuscumbia, for appellee.
The appellee, R. G. Taylor, instituted this action against the appellant, J. C. Taylor. The bases of his claim, stated in different counts, were: (a) A promissory note, executed by defendant and one M. J. Taylor, who is not sued, to the plaintiff; and (b) a loan of a small sum by the plaintiff to the defendant, M. J. Taylor, not being averred to be a party to the contract of loan. The suit was commenced against this defendant (appellant) alone on January 28, 1916. Among other pleas the defendant interposed those numbered 3, 7, and 8. It appears from the judgment entry that demurrers were sustained to two of these pleas, viz. 3 and 8; but no ruling of the court is shown by the judgment entry to have been made on the demurrer to plea 7. Hence the second assignment of error, which complains of the sustaining of demurrer to plea 7, presents nothing for review, it not appearing that the court took any action on the demurrer to plea 7.
The report of the appeal will reproduce pleas 3 and 8. We note in passing that these pleas were interposed to the whole complaint; and from their faces it appear that they should have been addressed alone to the feature of the complaint declaring on the note, not to the feature declaring on the loan contract, to which the plaintiff and defendant were alleged to be the sole parties.
Plea 3 sought the discharge of the defendant, averred to be a surety only, from liability under what he conceived to be the effect of the provisions of Code, § 5396. This statute reads:
"A surety upon any contract for the payment of money, or for the payment or delivery of personal property, may require the creditor, or any one having the beneficial interest in the contract by notice in writing to bring suit thereon against the principal debtor, or against any cosurety to such contract; and if suit is not brought thereon, pursuant to such notice, to the first court to which suit can be brought after the receipt of such notice, and prosecuted with diligence according to the ordinary course of law, the surety giving such notice is discharged from all liability as surety, or his aliquot proportion of the debt, as the case may be; and one surety may give the notice in behalf of his cosureties."
The court sustained the demurrer to plea 3 on the theory that the provisions of the statute (section 5396) were inapplicable, were unavailable in a case where the creditor had already sued the surety, though alone, before the notice to sue the principal debtor was given by the surety to the creditor; the plea showing on its face that the notice, by the surety to the creditor, was given on a date approximately 45 days after the creditor had commenced his suit against the surety. A reading of the statute, its very terms forbid any other interpretation than that the trial court gave the statute. The case of Scott v. Bradford, 5 Port. (Ala.) 443, neither suggests nor holds anything to the contrary. There was no error in sustaining the demurrer to plea 3.
Plea 8 was patently faulty. It is difficult to divine its real purpose or to assign it to any particular category in pleading. The brief for appellant treats it as an effort to invoke fraud in bar of the recovery sought on the note. If that was the pith and purpose of the plea, it was subject to those grounds of the demurrer (the grounds were very meager) pointing the objection that it did not charge the plaintiff with fraudulent conduct or acts inducing or compelling Marion Taylor to decline or fail to move to and make a crop in 1915 on defendant's farm. Pleading, on consideration of demurrer, must be construed most strongly against the pleader; and, if it were possible to accord some definite effect to the plea's phrase, "but for the fraudulent acts of the plaintiff," still the application of the rule stated would deny the appellant the benefit of a favorable interpretation of his equivocal (to put it mildly) vital averment in this regard.
There is no merit in the only two assignments reviewable on this appeal. The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.