Alsobrook v. Deshler

GOLDTHWAITE, J.

We incline to the opinion, that if the matter of this plea was well pleaded, there is no sufficient reason why the defendant should not be permitted to show a payment in this way upon the principle settled in Tipton v. Nance, 4 Ala. Rep. 194. But however this may be, we think, if the trust, or agreement controlling the indorsement, is as supposed by the pleader, he does not show a payment which is covered by it. The assertion is, the note was indorsed to Deshlqr, for the sole purpose of discharging a debt due from the indorsers to the Planters’ Bank of Nashville by their note secured in a particular manner. The discharge is deduced by the pleader from the circumstance that the in-dorsers afterwards directed the maker to pay the sum due on the note sued on, to the Planters’ Bank at Nashville, and that it was so paid. It does not appear the payment was made on account of, or credited on, the particular note of the indors-ers which it was the object of the indorsement to produce the funds to discharge, and consequently it is not shown the payment produced the effect, of discharging the noto which was the object of the indorsement. It said the certainty required in special pleas, depends on the subject matter, and when the agreement is to perform some matter of law, as to discharge an obligation, the performance must be pleaded specially, because, being a matter of law, it ought to be exhibited to the court, to see if it be well performed. [Chitty’s Pl. 518.] It seems to us, if all the facts asserted in this plea were proved to the jury, it would not follow that the particular note due from Merrill & Co. to the Planters’ Bank at Nashville was thereby discharged, and for this reason the plea is bad.

As there was no error in so pronouncing, the judgment must be affirmed.