[Alabama National Bank v. Rivers.] signed his name upon it at the request of plaintiff, He was, at most, an irregular accommodation indorser, as between him and the plaintiff, the immediate parties with notice.-Mauldin v. Bank, 2 Ala. 513; Bank v. Dawson, 78 Ala. 67; Marks v. First Nat. Bank, 79 Ala. 558; Noble v. Walker, 32 Ala. 458; Day v. Thompson, 65 Ala. 274. It was competent between the immediate parties to show by parol evidence what the relation of such "irregular indorser" was to the draft.-Authorities supra. 2. If Rivers was liable as indorser, that liability ceased, and his obligation was satisfied and the paper was cancelled, upon payment by the drawee on presentation.-3 Randolph on Commercial Paper, §§ 1420, 1421; 2 Daniel on Negotiable Instr., § 1236. If payment was made by the drawee, and the obligation thus cancelled, no suit could be maintained against the indorser on the paper or his contract of indorsement, but should be either for money received by him, or for money paid, or for the damages suffered by the refunding; but it can not be maintained on the paper.-3 Randolph Commercial Paper, §§ 1420, 1421; 2 Daniel Neg. Instr. § 1236; 2 Edwards on Bills, § 722; Young v. Lehman, 63 Ala. 522; Bolling v. McKenzie, 89 Ala. 470. 3. If the draft was not paid by the drawee, then it was incumbent on the plaintiff to prove his allegations of presentment and due notice, and to show protest.-2 Daniel Neg. Instr., § 926; Tate v. Sullivan, 96 Am. Dec. 604, note; Manning v. Maroney, 87 Ala. 566; 2 Greenl. on Ev., §§ 175, 176, 178, 180, 183, 186; Tarver v. Boykin, 6 Ala. 353. And this is true where the paper is void, if the indorser has no knowledge of the infirmity; certainly where the suit is on the contract of indorsement, and not to recover back the consideration.-Susquehanna Bank v. Loomis, 85 N. Y. 207; 2 Daniel Neg. Instr., §§ 1113a, 1113b; 2 Randolph on Com. Paper, p. 397, § 753, note. 4. It was also incumbent on the plaintiff seeking to recover against the indorser money paid on a forged draft, to return or offer to return it; certainly where there was a genuine prior indorser as Gellhorn was.Redington v. Woods, 45 Cal. 406; Coolidge v. Brigham, 1 Metc. 550; 2 Daniel on Neg. Instr., §§ 1371-1372a; 3 Randolph Com. Paper, p. 614, § 1530. 5. The plaintiff can not rely on any re-payment made in New York to refund to the drawee the money paid [Alabama National Bank v. Rivers.] by him on presentation of the draft. Because, the first four counts are on the contract of indorsement, and under the common counts "for money paid," &c., a "list of items" being demanded and furnished, limiting their claim to the payment in plaintiff's bank, at the time of the discounting by plaintiff, they are confined to the items so furnished.-Code of 1886, § 2670; Boykin v. Persons, 95 Ala. 626. 6. Where the draft sued on is stamped "paid" by the holder, and is cancelled in the way usual where such drafts are paid, it indicates payment, and this will prevail unless overcome by evidence.-Clark v. mons, 4 Porter 14; Riggs v. McDonald, 1 Ala. 641. Sim 7. Under the common counts, the plaintiff, in order to recover against the indorser the original consideration, the burden is on the plaintiff to prove that the draft was not paid on presentation.-3 Randolph on Com. Paper, § 1673; Byles on Bills, 420. 8. Nothing will amount to a waiver of protest and notice, unless it is done with full knowledge of the laches.-3 Randolph on Com. Paper, § 1356; 2 Daniel on Neg. Instr., §§ 1147, 1149; Bolling v. McKenzie, 89 Ala. 475. BRICKELL, C. J.-This was an action instituted by the Alabama National Bank, appellant, against E. R. Rivers, appellee, to enforce the latter's liability as an accommodation indorser of a check or draft, which had been purchased from the apparent payee upon appellee's indorsement, and which had been raised from two dollars to two thousand dollars between the date of its issue and the purchase by appellant. On February 23d, 1892, the Gate City National Bank of Atlanta, Georgia, issued its check or draft on the National Park Bank of New York for the sum of two dollars, payable to the order of Thomas Hall. Subsequently the draft was fraudulently altered by changing the name of the payee from Thomas Hall to M. Gellhorn, and changing the amount from two dollars to two thousand dollars, and punching or cutting the figures "2000" in the body of the draft. The signature was not changed in any respect. On February 25th, 1892, Rivers, who was a customer of and well known to the plaintiff, went to the bank with said Gellhorn and, leaving the latter outside, asked the cash [Alabama National Bank v. Rivers.] ier whether he wanted any New York exchange, stating that a friend of his had some and that he would bring him in. Receiving an affirmative reply, he called in and introduced Gellhorn, who produced the draft altered as stated above. The cashier agreed to purchase the draft, and told Rivers to indorse it. The latter at first refused to indorse the draft, saying that he had not come to indorse for Gellhorn, but only to identify him, but finally did so, writing his name under and after that of Gellhorn. The latter then went to the paying teller and received two thousand dollars less one dollar charged by plaintiff for exchange. Gellhorn was indebted to Rivers at the time in the sum of seven hundred and fifteen dollars, for which he had given security, and after receiving the money from the paying teller he immediately returned to the cashier's desk and asked the cashier to count out that amount for Rivers, which was done ; the latter amount being paid to Rivers by Gellhorn in the presence of the cashier, and Rivers immediately deposited it to his credit in the plaintiff bank. The draft was sent at once by the plaintiff to its New York correspondent, the National City Bank, indorsed "for collec tion." The complaint consists of six counts. The first is in the statutory form of a complaint by indorsee against indorser; the second, third and fourth declare on the contract of indorsement, reciting the forgery and averring presentment, non-payment and due notice of dishonor; the fifth and sixth are the common counts for money had and received and money paid. Besides the general issue the defendant filed many special pleas setting up the defense, in various forms, that the draft had been paid by the drawee upon presentment, that the defendant had indorsed the draft only for the purpose of identifying the payee, and not for the purpose of incurring any liability as an indorser, and want of consideration. It will be observed that the defendant at the time of the indorsement was a stranger to the draft, and that his indorsement was not, therefore, a regular indorsement for the purpose of transfer, but purely an irregular accommodation indorsement. There is, perhaps, no subject of law upon which there has been greater diversity of opinion than that of the nature of the liability incurred by such an indorsement. But we need not [Alabama National Bank v. Rivers.] cite, nor attempt to reconcile, the various and conflicting opinions upon this question. The liability of an indorser is governed by the law of the place of the indorsement, and the liability incurred by the defendant must, therefore, be determined by the law of this State. The question has long been settled in this State, by decisions which have been steadily adhered to and followed, that such indorsements, unexplained, impose a liability on the indorser, in favor of the person against whom the indorsement is made, which is strictly analogous to the liability upon a regular indorsement.-Marks v. First Nat. Bank, 79 Ala. 562; Hooks v. Anderson, 58 Ala. 239; Price v. Lavender, 38 Ala. 389; Jordan v. Garnett, 3 Ala. 610; Milton v. De Yampert, 3 Ala. 648. And since the liability of an indorser is a contingent one, depending on due presentment, non-payment and notice of dishonor, if the draft in controversy was in fact and in legal contemplation paid by the drawee to the National City Bank, the agent of plaintiff for its collection, this fact constituted a complete defense to the present suit. If payment was made by mistake, or under such circumstances that the refunding of the amount paid could legally be compelled, and it was in fact refunded, these facts were proper matter for replication, or could, perhaps, be shown under issue joined on the plea of payThe demurrers to the pleas setting up this defense were, therefore, properly overruled. ment. But the court below erred in overruling the demurrers to those pleas which set up the defense that the defendant indorsed the draft only for the purpose of identifying Gellhorn, the payee, and not for the purpose of incurring any liability as an indorser. These pleas show that the facts relied on to establish the defense rested in parol only. The defense was, not that the liability incurred was that of a guarantor or surety, as distinguished from that of indorser, but that no liability whatever was intended to be, or was, in fact, incurred, because the sole purpose of the indorsement was to serve as a memorandum to enable plaintiff, if necessary, to recall by whom the payee had been identified, and that this purpose was known to the plaintiff. Whether parol evidence is admissible to show that the circumstances attending the indorsement indicate an intention of the indorser to be bound only as a guarantor, surety, [Alabama National Bank v. Rivers.] or co-maker, and not as an indorser, we need not, therefore, decide. See Hullum v. State Bank, 18 Ala. 805; Tiller v. Shearer, 20 Ala. 596. It has long been settled by the decisions of this court that the legal effect of the indorsement can not be varied by parol evidence of an agreement, contemporaneously made, that the indorser of a note or bill should not be made personally liable for its payment. The specific legal import of the contract evidenced by the defendant's indorsement was, that he would pay the draft if payment should be refused by the drawee upon due presentment, and he should be duly notified of the dishonor; and this import can not be destroyed and the contract varied, even in a suit between the immediate parties to the contract, by proof that the indorsement was only for the purpose of identification.-Day v. Thompson, 65 Ala. 273; Preston v. Ellington, 74 Ala. 139; Tankersley v. Graham, 8 Ala. 251; 3 Rand. Com. Paper, § 1903. Such pleas, moreover, since they deny the legal effect of the indorsement, that is, deny that it was made in such manner as to be binding on the defendant, should be verified by affidavit.-Code of 1886, § 2676; Tiller v. Shearer, 20 Ala. 597; Bryan v. Wilson, 27 Ala. 208. This ground of objection was not specified in the demurrers, and, therefore, can not be considered in passing upon them. We have referred to the want of the affidavit only for the purpose of showing that the legality of the testimony as to the circumstances under which the indorsement was made must be referred to the issues under which it was offered, and can not be considered for the purpose of showing that the liability incurred by the defendant was only that of a guarantor or surety, for which purpose it would have been illegal in the absence of a sworn plea. The court below gave the general charge in favor of the defendant, and it is earnestly contended by the appellee that the charge was properly given, because the evidence showed affirmatively, and was uncontradicted, that the draft was in fact paid by the drawee, and failed to show demand, protest and notice. The liability of an irregular accommodation indorser, when there is a valid consideration to support the indorsement, being, as we have seen, the same as that of a regular indorser, and therefore contingent upon due presentment, non |