In Jones v. Bell, 201 Ala. 336, 77 So. 998, it was declared that, if there was a tendency in the nature of material conflict in the evidence of a witness, as between his direct and cross examination, a jury question is presented under our scintilla rule.Summary of this case from St. Louis-San Francisco Ry. Co. v. Robbins
7 Div. 855.
November 15, 1917.
Appeal from City Court of Talladega; Marion H. Sims, Judge.
Knox, Acker, Dixon Stewart, of Talladega, for appellant. G. T. Welch and Riddle Riddle, all of Talladega, for appellees.
Commercial paper in the hands of a bona fide purchaser for value before maturity is not subject to the defenses which would avail against the original payee, unless it is shown that the purchaser had notice of such defense. Merchants' National Bank v. Norris, 163 Ala. 481, 51 So. 15. The question of fact presented by the record is whether or not the plaintiff was a bona fide purchaser for value without notice before maturity, of the notes sued on.
"An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof; if payable to bearer, it is negotiated by delivery." Code, § 4985. The notes here sued on being "payable to order," must have been negotiated, if they were negotiated, "by the indorsement of the holder, completed by delivery." Code, §§ 4985, 5007; Ex parte Goldberg Lewis, 191 Ala. 356, 67 So. 839, L.R.A. 1915F, 1157. The effect of the court's oral charge was to conclude the inquiry of this question of fact.
It is well established that, if there be any evidence which tends to prove or to disprove the plaintiff's cause, the trial court should not withdraw the issue of fact from the jury. It is not for the court to judge of the sufficiency of the evidence or decide which of the conflicting tendencies of the evidence should be adopted by the jury, nor to draw the reasonable inferences from the evidence for the jury. M., J. K. C. R. R. Co. v. Bromberg, Adm'r, 141 Ala. 258, 37 So. 395; McCormack Harvesting Mach. Co. v. Lowe, 151 Ala. 313, 44 So. 47; Tobler v. Pioneer Min. Mfg. Co., 166 Ala. 482, 517, 52 So. 86; Shipp et al. v. Shelton, 193 Ala. 658, 69 So. 102; Amerson v. Corona Coal Iron Co., 194 Ala. 175, 69 So. 601.
"A court should never direct a verdict when the evidence is such as to afford a reasonable inference of the existence of any fact unfavorable to the right of the party asking the affirmative charge to the verdict." B. R., L. P. Co. v. Colbert, 190 Ala. 229, 67 So. 513; Empire Coal Co. v. Martin, 190 Ala. 169, 67 So. 435; Stouts Mountain Coal Coke Co. v. Tedder, 189 Ala. 637, 66 So. 619.
There were tendencies of evidence, and reasonable inferences deducible, to an effect contrary to the view expressed by the court in the oral charge. The court said to the jury:
"Under the view I take of this case, the plaintiff being a bona fide purchaser for value, without notice, the notes are due the plaintiff, and the court charges the jury that your verdict must be for the plaintiff, if you believe the evidence, for the principal and interest and attorney's fee."
We will not discuss the testimony in detail, for this might tend to embarrass the retrial of the cause on the facts. The question whether the plaintiff was a bona fide purchaser for value, without notice, of the notes, should have been submitted to the jury for determination, and not decided by the court, as was done in the foregoing instruction given by the court. Shipp et al. v. Shelton, supra; Penticost v. Massey, ante, p. 261, 77 So. 675.
Though there may be material contradictions between the direct and the cross examination of a witness, yet this does not warrant the court in disregarding his testimony; but the credence to be accorded the witness must be left to the jury. Lay v. Fuller et al., 178 Ala. 375, 382, 59 So. 609; Beitman v. B. Paint Glass Co., 185 Ala. 313, 64 So. 600; Chambliss v. Mary Lee C. R. Co., 104 Ala. 655, 16 So. 572; Pilcher v. Smith, 4 Ala. App. 444, 58 So. 672.
In Powell v. Olds, 9 Ala. 861, 865, 866, it was declared that the court may not exclude the testimony of a witness because, in the opinion of the court, such witness on cross-examination denies what he has sworn to upon the examination in chief; that it is peculiarly the province of the jury to decide what weight shall be given the testimony of such a witness, when his whole testimony, on direct and cross examinations, is considered by them in connection with the other testimony adduced on the trial.
Since the cause must be retried, we may say that plea No. 1 was sufficient as the general issue (Will's Gould's Pleading [6th Ed.], p. 48, and note), and that plea 2 was subject to demurrer, in that it did not state when the payment was made, whether before or after suit. The question of costs was at issue under such plea. Schillinger v. Leary, 77 So. 846;1 McDougald's Adm'r v. Rutherford, 30 Ala. 253; Draper v. Walker, 98 Ala. 310, 13 So. 595; Harris v. Swanson, 67 Ala. 486, 488; Lindsay v. Barnett, 130 Ala. 417, 30 So. 395. As to costs that may be recovered, reference may be had to Stevens v. Standard Oil Co., 156 Ala. 581, 47 So. 140: Western Railway v. Foshee, 183 Ala. 182, 190, 62 So. 500; Kendrick v. Chafin, 2 Ala. App. 452, 57 So. 78; Code, § 3662.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.