[Pike County v. Hanchey.]

P. O. Harper be and he is hereby re-elected hard labor agent for the county at the same salary, and upon the same terms as last year." 2d. "The State of Alabama, Pike county. Commissioners Court. Regular Term, Nov. 5th, 1894. Ordered by the court, that Judge P. O. Harper be and he is hereby continued as hard labor agent until the February term of this court; and that the contract for the hire of convicts already made remain as they are until that time, unless cancelled by the board of convict directors. It is further ordered, that said hard labor agent hire all convicts in the county as now arranged, until the February term of this court for 1895, not otherwise contracted for." These minutes of the court were offered in evidence together, and to the introduction of them the defendant objected. The court sustained the objection, and to this ruling the plaintiff duly excepted. The plaintiff offered in evidence the bond and contract upon which the suit was founded, and which were attached to the plaintiff's complaint, and marked exhibit "A." The defendant objected to the introduction of said bond and contract, but the bill of exceptions does not state any grounds for the objection. The court sustained the objection, and to this ruling the plaintiff duly excepted. There was judgment for the defendants. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

P. O. HARPER, and T. L. BARAM, for appellant, cited, Trammell v. Lee County, 94 Ala. 194; 3 Brick. Dig., p. 605, sec. 106; Code of 1886, §4598; Ex parte White, 81 Ala. 80.

D. A. BAKER, contra, cited, Acts 1892-93, 213; State v. Metcalf, 75 Ala. 42; Arrington v. Morgan, Ib. 606; Code of 1886, $4586; Montgomery County v. Barber, 45 Ala. 237; Simpson v. Lauderdale County, 56 Ala. 64.

COLEMAN, J.-This suit began in a justice's court. to recover for the hire of a county convict, which resulted in a judgment for the plaintiff. The defendant appealed to the circuit court, where the cause was tried de novo. In the circuit court the plaintiff filed a formal complaint, consisting of four counts, some of which are in the common form for work and labor done, and others

[Pike County v. Hanchey.]

counted upon the breach of the bond executed by the defendant with sureties for the hire of the county convict, for the value of whose services the suit was instituted. The contract and bond sued upon is made exhibit "A" to the third and fourth counts of the complaint.

The defendant demurred to each count of the complaint, and the demurrer was sustained to the second, third and fourth counts. The several rulings of the court sustaining the demurrer to each of these counts, are separately assigned as error.

The second count avers that the defendant failed and refused to pay the hire and avers that such failure and refusal was a breach of the condition of the bond. This count nowhere states the condition of the bond. The court cannot determine from anything contained in the second count, whether there has been a breach or not. The demurrer was properly sustained.-Code, page 791. The third count "claims damages for the breach of a contract in words and figures as set out in exhibit 'A' hereto attached, etc." It avers that Harper, whose name is signed to the contract as agent, was authorized by the court of county commissioners to make the contract for the hire of the convict; that the convict was regularly tried, convicted and sentenced, and in pursuance of the contract, was delivered to and worked by the defendant, "and that defendant failed to pay the hire, wherefore plaintiff sues, etc." It is contended that this count shows neither the condition of the agreement, nor a breach. The count sets out the whole of the contract, one of the provisions of which is the agreement to pay the county of Pike for the hire of the convict. The averment that the defendant failed and refused to pay the hire according to the said contract, certainly shows a breach of the contract, as much so as if the count in totidem verbis had further averred such "failure or refusal" to be a breach of the condition of the agreement. The court erred in sustaining the demurrer to the third count of the complaint.

As the case must be reversed, we will not consider the fourth count, further than to say that exhibit "A" should be made a part of said count by a more definite averment. On another trial the plaintiff can make the necessary amendment.

The minutes of the commissioners court of November

[Talmage & Co. v. Milliken & Meigs.]

6, 1893, if offered alone, were competent evidence to go to the jury. These minutes showed the authority of the agent to make the contract. Offered in connection with the minutes of November, 1894, which were made after the termination of the term of hiring, they were irrelevant, and the two having been offered as a whole, the court did not err in sustaining an objection to the evidence.

The action was properly brought in the name of Pike county, not only because Pike county was the party really interested, and therefore the proper party plaintiff, under section 2594 of the Code of 1886, in the counts seeking a recovery for the payment of money, but by the terms of the contract Pike county is made the obligee or payee, and, therefore, entitled to maintain the action to recover damages for a breach of the agreement.

The plaintiff offered in evidence the bond and contract of the defendant. To this evidence the defendant objected, and the court sustained the objection. The objection was general, not specifying any ground. We presume the court proceeded upon the proposition, that before the bond and contract could be evidence of a valid obligation, it should appear that the commissioners court had previously "determined in what manner and upon what particular works hard labor should be performed," as provided in section 4586 of the Code of 1886. Reversed and remanded.

Talmage & Co. v. Millikin & Meigs.

Action on a Bond by Transferee against Maker.

1. Accommodation paper, not subject to plea of no consideration in hands of transferree for value, whether commercial paper or not.-Accommodation paper is not within the provisions of the statute, (Code of 1886, § 2594), which gives to the payor of non-commercial paper, as against the transferree, any defense which he would have had against the payee, because the transferree is himself the real and only payee, and the nominal payee is not a payee at all in legal contemplation or in fact.

2. Case at bar.-The maker of a bond, who signs and delivers same

[Talmage & Co. v. Milliken & Meigs.]

to the payee, for the latter's accommodation, and for the purpose of enabling him to obtain money thereon, cannot set up a want of consideration as against a transferree for valuesince before the transfer it was not a contract at all, and upon its transfer it became the contract of the maker as payor, and the nominal payee as indorser to pay the sum nominated in the bond to the transferree as payee.

3. Partner cannot bind firm on accommodation paper.—Accommodation paper executed in the firm name by a member of a firm engaged in merchandising is not binding on the firm or his co-partner.

APPEAL from Henry Circuit Court.

Tried before Hon. J. W. FOSTER.

This was an action brought by the appellants, Henry Talmage & Company, against the appellees, W. W. Milliken and S. K. Meigs, "partners doing business as Milliken & Meigs." The defendant Meigs interposed a special plea of non est factum, denying the execution of the bonds sued on. The defendants jointly filed pleas denying the consideration for the bonds sued on. The plaintiffs filed replications to the joint pleas, averring that the bonds sued on were executed by the appellees at the request of one Burbage, as an accommodation to him, to enable him to use the bonds as a means of raising or borrowing money; that the bonds were, for that purpose, indorsed to the plaintiffs by said Burbage, as collateral security for loan of money made at the time the bonds sued on were transferred. The replications showed the amount of money that was advanced upon the security of the bonds, and the date when the transfer was made and money loaned. The court granted defendants' motion to strike the replications. Plaintiffs excepted. Issue was then joined upon the plea of non est factum and upon the other pleas of the defendants. It was shown upon the trial that at the time of the execution of the bonds sued on, the defendants were engaged in the mercantile business, in Ashford, Alabama, in the firm name. of Milliken & Meigs; that the bonds were signed by W. W. Milliken, one of the defendants, without the knowledge of or authority from his co-partner, Meigs. The other facts are stated in the opinion. The court, at the request of the defendants, gave the general affirma

[Talmage & Co. v. Milliken & Meigs.]

tive charge in their behalf, and refused a similar charge requested by plaintiffs. The rulings of the court in granting the motion to strike plaintiffs' replications, and upon the above charges are assigned as error.

SANDERS & SANDERS and H. A. PEARCE, for appellants. The bonds having been executed for accommodation purposes, and there being nothing in the complaint to show the manner in which the bonds were acquired by plaintiffs, it was necessary and proper that replications be filed to the pleas of no consideration for the purpose of showing that the plaintiffs' rights accrued in pursuance of the purpose of the execution of the paper.-Slaughter v. First Nat. Bank, 109 Ala. 157; Herring v. Skeigs, 73 Ala. 446; Winter v. Mobile, 54 Ala. 172; Connelly v. Ins. Co., 66 Ala. 432. Accommodation paper is either a negotiable or non-negotiable bill or note, made by one who puts his name thereto without consideration, with the intention of lending his credit to the party accommodated. It does not become a binding contract until negotiated, and is supported by the consideration moving to the accommodated party when transferred. Section 2594, Code of 1886, has no application to such paper.-1 Am. & Eng. Encyc. of Law, (2d Ed.), 340, 336, 337; Miller v. Larned, 103 Ill. 562; Farier v. New York Bank, 90 Ga. 331; Weill v. Frasclair, 42 La. Ann. 171; Randolph on Com. Paper, 472; Rutledge v. Townsend, 38 Ala. 706; Dunbar v. Smith, 66 Ala. 490; Marx v. First Nat. Bank, 79 Ala. 550; Dan. on Neg. Ins. 790; Connerly v. P. & M. Ins. Co., 66 Ala. 433; Brummell v. Enders, 18 Gratt. 905; Harris v. Brooks, 21 Pick. 195; Smith v. Morrill, 54 Me. 48; Hubbard v. Greeney, 64 N. Y. 457; Goldsmith v. Holmes, 1 L. R. A. 816; Holmes v. Goldsmith, 147 U. S. 150.

G. L. COMER, ESPY & FARMER, and R. H. WALKER, contra. An accommodation paper is either a bill of exchange or negotiable promissory note. There is no such thing as an accommodation bond. Under the law of Alabama, the bonds are subject to any defense against the holder that the obligor had against the obligee before notice of the transfer.-Code of 1886, §2594; Black's Law Dic. p. 16; Rand. on Com. Paper, 472 and 473; Code, 1765; Muse v. Doutzler, 85 Ala. 359.