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raise no presumption of undue influence, since, in the absence of evidence to the contrary, the parent is presumably the dominant party. If undue influence is charged in such a case, the burden is on the parent to show it. Every person who is sui juris and under no legal disability has an unquestionable right of disposition of his property, whether by gift or otherwise. Where the donor and donee stand in such confidential relations as parent and child, and the donor is the dominant party, whether he be parent or child, no one would for a moment question the validity of the gift on the ground of undue influence, as such presumption in law arises only where the weaker party is the donor. The question in this case is one of fact, to be determined from the evidence, and under section 3826, subdivision 1 of the Code of 1896, in our determination of the case on the evidence, we cannot consider the findings of facts by the chancellor. The evidence is quite voluminous. Testimony of witnesses was taken by both sides on the questions of undue influence, exercised by the respondents over the complainant, and of the complainant's mental condition before and at the time of the alleged transaction. There was no pretense of fraud in the transaction other than that as charged in the exercise of undue influence.

We have carefully considered all the evidence, and after disregarding such as is illegal, we are clearly of the opinion that the weight of the evidence establishes the fact that the complainant was of sound mind, capable of entering into the contract assailed, and that the respondents were not the dominant spirit or spirits in the transaction. We are, furthermore, satisfied that the transfer by the complainant of his interest in the estate of his deceased son to the respondents, his daughters, was not induced by, nor was it the result of, any undue influence exerted by the respondents over him. It therefore follows that the decree appealed from must be reversed, and one will be here rendered dismissing the complainant's bill.

Reversed and rendered.

Tyson, Simpson and Anderson, JJ., concur.

A Gift from a Father to His Child, though improvident, may be valid and irrevocable: James v. Allen, 68 N. J. Eq. 666, 111 Am. St. Rep. 654; Barnes v. Banks, 223 Ill. 352, 114 Am. St. Rep. 331; Second Nat. Bank v. Merrill, 81 Wis. 142, 29 Am. St. Rep. 870.


[145 Ala. 321, 39 South. 612.]

BANKS AND BANKING-Collections.-A bank undertaking to collect a claim may by custom be allowed to employ subcollecting agents, but it is bound to select such agents with judgment and care. (p. 45.)

BANKS AND BANKING-Collections-Custom.-A bank, or person who is to pay paper, is not the proper person to whom the paper should be sent for collection by the collecting bank, and a custom to that effect is unreasonable and void, rendering the collecting bank liable for damages to the payee of the paper, if damages result from acting on such custom. (p. 45.)

Steiner, Crum & Weil, for the appellant.

R. Rushton, for the appellee.

326 SIMPSON, J. The vital question raised by the pleading in this case is, Can a bank, to which is intrusted a check for collection, send that check to the bank upon which it is drawn, receive its check on New York in payment, and. when the latter check is protested on account of the failure of the bank drawing it, shield itself behind a custom to transact business in that way? It may be admitted that a party committing a paper to a bank for collection may be bound by a custom which is reasonable and sufficiently general to presume that it is known. The point has not been directly decided in this state. In the case of Lowenstein v. Bresler, 109 Ala. 326, 19 South. 860, Chief Justice Brickell said: "It may be the drawee of a check is not a suitable agent to be intrusted with 327 its collection; and it may be that the Bank of Commerce, in selecting the banking company as the agent to collect the check and remit the collection, rendered itself liable to the plaintiff's for whatever loss might result to them from the unsuitable selection." And he cites several authorities supporting this proposition. The proposition seems to be generally recognized. Undoubtedly, an agent who undertakes to collect a claim, although by custom he may be allowed to employ subagents, yet is certainly bound to select his subcollecting agents with judgment and care, and one of the first elements of care is to select a subagent who is not adversely interested in the subject matter. What would be the use of a party placing his claim in the hands of a bank for collection, if that duty could be performed by merely indorsing the paper

by mail to the party who is obliged to pay it and receive his check on New York? The owner of the paper could send it directly, and receive his New York exchange in much less time. A custom must be reasonable, and the best considered cases hold, not only that the bank or party who is to pay the paper is not the proper person to whom the paper should be sent for collection, but also that a custom to that effect is unreasonable and bad: 1 Morse on Banking, sec. 236; Drovers' Nat. Bank v. Anglo A. Packing Co., 117 Ill. 100, 57 Am. Rep. 855, 7 N. E. 601; First Nat. Bank of Chicago v. Citizens' Sav. Bank, 123 Mich. 336, 82 N. W. 66, 48 L. R. A. 583; Minneapolis Sash etc. Co. v. Metropolitan Bank, 76 Minn. 136, 77 Am. St. Rep. 609, 78 N. W. 980, 44 L. R. A. 504; German Nat. Bank v. Burns, 12 Colo. 539, 13 Am. St. Rep. 247, 21 Pac. 714; Wagner v. Crook, 167 Pa. 259, 46 Am. St. Rep. 672, 31 Atl. 576; Merchants' Nat. Bank v. Goodman, 109 Pa. 422, 58 Am. Rep. 728, 2 Atl. 687.

The judgment of the court is affirmed.

Haralson, Dowdell and Denson, JJ., concur.

The Duty and Liability of Banks in the matter of collections where they forward the paper to another bank are discussed in the notes to Minneapolis etc. Co. v. Metropolitan Bank, 77 Am. St. Rep. 623; Allen v. Merchants' Bank, 34 Am. Dec. 313. A bank receiving notes for collection is not liable in respect thereto for the negligence of its correspondent whom it exercises due care in selecting: Second Nat. Bank v. Merchants' Nat. Bank, 111 Ky. 930, 98 Am. St. Rep. 439.


[145 Ala. 335, 40 South. 415.]

PRINCIPAL AND SURETY-Building Contracts-Discharge of Surety. If a building contract between the contractor and owner is made part of a contract of suretyship between the contractor and his surety and specifies that payment shall be made as the work progresses upon the certificate of the architect, and estimates for material when delivered, reserving ten per cent to be paid only when the work is completed, and the owner undertakes to pay in a different way, without the consent of the surety, the latter is thereby released. (p. 46.)

PRINCIPAL AND SURETY-Building Contracts-Rights of Surety. If a contractor enters into a building contract to do certain work on certain terms, and procures a surety to guarantee the faith

ful performance of the work, the surety necessarily contracts with reference to the contract as made, and its terms become a part of the terms of the bond, and he has a right to insist upon the performance of the terms of the contract as written, and if the principal does something else without his consent, he is released, although the thing actually done is more beneficial to him. (pp. 46, 47.)

PRINCIPAL AND SURETY-Building Contracts-Waiver by Surety. If the obligation of a surety in a building contract is to secure the owner against certain mechanic, materialmen and other liens of like character, and hold him harmless against all such demands, and to release him from the necessity of inquiring into such matters and from the payment of such claims, such obligation does not operate as a waiver by the surety of so much of the building contract as requires payment thereon to be made in a particular manner. (pp. 50, 51.)

Watts & Son and H. Stringfellow, for the appellant.

Steiner, Crum & Weil and J. M. Chilton, for the appellee.

343 SIMPSON, J. This was an action by appellant against appellee, based on a bond which appellee executed March 7, 1901, as surety for John W. Hood & Co. to secure the faithful performance of a contract by which said Hood & Co. had agreed to furnish materials and erect a certain building in Montgomery, Alabama.

The first point raised by the pleadings, and strenuously and ably argued in the briefs of both the appellant and appellee, is whether or not, in a case like this, where the building contract specifies that payment shall be made as the work progresses upon certificate of the architect, and estimates for material when delivered, reserving ten per cent to be paid only when the work is completed, and the owner undertakes to pay in a different way, as by advancing money to the contractor to be repaid as the estimates and certificates are made, and paying for lumber before it is delivered, without regard to the ten per cent reduction, the surety is released. The appellant relies upon the case of Fidelity & Deposit Co. of Maryland v. Robertson, 136 Ala. 379, 34 South. 933, and especially the remark of the court, on page 409 of 136 Ala., page 943 of 34 South., to the effect that the provision of the contract, authorizing the temporary reservation from payments of fifteen per cent of estimated earnings, was solely for the benefit of the original contractor, and one which, in the absence of any prohibition in the bond, the original contractor might waive without the consent of the surety. It is a maxim of the law that all parties, whether principal or surety, who reduce their

contracts to writing, have a right to insist upon the terms of the contract as written, and it does not lie in the power of the courts to say that, although a party has contracted to do one thing, yet he has done something else, which is more beneficial to the other party, and is therefore entitled to the enforcement of the contract. 344 When a party enters into a contract to do certain work and on certain terms, and procures a surety to guarantee the faithful performance of the work, the surety necessarily contracts with reference to the contract as made. The terms of the contract become a part of the terms of the bond. Otherwise the surety could never know what obligation he was assuming. The contracts were made at the same time. The surety's bond recites that, whereas the building contract has been made, etc. Then, in the absence of any explicit declaration to that effect, it is difficult to see how a court can undertake to say that certain provisions are made for the benefit of the principal alone, and can be waived or changed by him, without the consent of the surety. This is a matter, however, that has been so thoroughly discussed by the courts in England and in this country, and the trend of the best authorities is so evident, that it seems useless to go over the arguments of the courts.

The leading case in England is that of Calvert v. London Dock Co., 2 Keen, 638. And the supreme court of the United States, in an able opinion by Justice White, in which he reviews the decisions of that court and others, plants itself squarely on the English doctrine, declaring that "the rulings of this court have been equally emphatic in upholding the right of the surety to stand upon the agreement, with reference to which he entered into this contract of suretyship, and to exact compliance with its stipulations": Prairie State Bank v. United States, 164 U. S. 227, 17 Sup. Ct. Rep. 142, 41 L. ed. 412. Equally emphatic are the cases of Simonson v. Grant, 36 Minn. 439, 31 N. W. 861; United States v. American B. & T. Co., 89 Fed. 925, 32 C. C. A. 420; Backus v. Archer, 109 Mich. 666, 67 N. W. 913, and cases cited; Stearns on Suretyship, sec. 79, and note; 27 Am. & Eng. Ency. of Law, 495, See, also, Manatee County State Bank v. Weatherly, 144 Ala. 655, 39 South. 988. It is unnecessary to extend this opinion by citing all the cases that could be produced, or by going over the arguments in those here cited. The declaration of the principle is clear and the reasoning satisfactory. We are

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