57 So. 255 | Ala. Ct. App. | 1911
The personal property mentioned in the two counts of the complaint — one of them being in detinue and the other for a conversion — was sold by the plaintiff (the appellant here) to one Falkner, from whom the defendants (the appellees) acquired it. In reference to the pleadings in the case, the record proper shows the following: On. September 9, 1910, the defendants filed two pleas, neither of which was numbered, but the first one set out was a plea of res ad judicata, and the other one was the general issue. The plaintiff demurred to the plea of res adjudicata, referring to it as “defendants’ first plea.” On September 14th the defendants filed two pleas, numbered 1 and 2, No. 1 being the general issue, and No. 2 being a plea setting up a tender of lumber in payment of the purchase price for the property sued for, under a provision on that subject in the contract of sale. The plaintiff filed demurrers to the plea of tender. The recital in the min
But the judgment entry itself plainly indicates that the pleadings were insisted on which the appellant now claims were abandoned or waived. It shows that demurrers to the replications were submitted to the court and were by the court overruled. It further shows that the court overruled a motion made by the plaintiff to strike the rejoinder. This incident indicates that the plaintiff was trying to get rid of the issue tendered by that pleading, but does not suggest that the defendants waived or abandoned it. Furthermore, it is manifest from some of the evidence introduced on the trial without objection and from charges requested by both the plaintiff and the defendants that both parties acted on the assumption that the trial involved issues raised by the pleadings subsequent to the defendants’ pleas. And the plaintiff’s motion for a new trial bears on its face
The purchaser’s written order for the machinery provided for his cutting and delivering lumber in payment of the deferred installments of the purchase price, but did not specify the hind of lumber to be shipped. It was competent for the defendants to show by parol testimony what was the understanding on this subject arrived at at the time between the purchaser and the agent of the seller who had charge of the negotiation. This was proper for the purpose of identifying the subject-matter of this feature of the contract.—Moore v. Barber Asphalt Paving Co., 118 Ala. 563, 23 South. 798; 2 Page on Contracts, § 1217.
On the direct examination of the defendants’ witness Smith part of conversations between the purchaser of the machinery and the plaintiff’s agent in reference to the plaintiff’s accepting lumber in payment on the purchase price was brought out without objection. On the cross-examination of this witness the plaintiff elicited other details of these conversations. The plaintiff having elicited part of the conversations, it was not error to permit the defendants, on the redirect examination of the witness, to bring out still other details of one of the conversations connected with the matters in reference to which the witness had been cross-examined.—Simmons v. State, 145 Ala. 61, 40 South. 660.
What is said in argument by the counsel for the appellant in reference to the rulings of the court in giving and refusing charges requested is largely colored by the assumption on their part that the principal, if not the only, question arising under the evidence and the plead
In view of the conflict in the evidence already mentioned, it is manifest that the court was not in error in refusing to give the general affirmative charge and charge A requested by the plaintiff.
Each of the other written charges refused to the plaintiff was faulty in ignoring the question of a waiver by the plaintiff of a tender of lumber and the evidence hearing upon that question.
The counsel for the appellant do not point out any fault in either of the written charges given at the instance of the defendants which would make the giving of it a ground of reversal.
Affirmed.