Baker v. Boon, 100 Ala. 622

100 Ala. 622 | Ala. | 1892

COLEMAN, J.

Appellant Baker sued the defendant upon a promissory note, which resulted in a verdict and judgment for the defendant. The ruling of the court upon questions arising upon two pleas, are presented for consideration. The first plea marked “A” was that of payment. To this plea there was a replication, to the effect, that plaintiff purchased the note upon the statement and representation of the defendant that the note evidenced a just claim, and that there was no defense against it. The plea of payment authorized the introduction of evidence to show the payment of the note at some time subsequent to its execution. Suffice to say there was no evidence introduced of this character, and this plea was not sustained.

The second plea was a special plea, going to the consideration of the note. There was no replication to this plea. The gravamen of this plea, is, that at the time of the execution of the note, there were mutual accounts between the parties, the balance not known, but that there was a balance in some amount due the payee, and the note was (executed for an amount to cover the balance and that only such amount as should be found due upon a statement of the accounts was the real consideration of the note and the amount to be paid, and the plea avers that “only a few dollars was in fact due.” To this plea two grounds of demurrer were assigned. First, that the maker attempted to show by a parol agreement, that a different amount was to be paid, than that specified in the note, at an indefinite time, and after a settlement of their mutual accounts, and second, that the plea attempted to change a written agreement by parol testimony.

The court can consider no cause of demurrer not distinctly stated in the demurrer.—Code, § 2690, and authorities thereunder cited. In Ramsey v. Young, 69 Ala. 157, it is said, “that the consideration of contracts in writing is in general open to enquiry, and it is not an infringement of the rule excluding parol evidence to add to, vary or contradict writings, to receive parol evidence of the actual consideration for the purpose of determining its validity, or its failure, or that from any cause it is sufficient or insufficient to support the contract.”—Tisdale v. Maxwell, 58 Ala. 40; Holland v. Barnes, 53 Ala. 83. There is nothing in the plea to show that the^ payment was to be postponed or that the note could be discharged in any particular manner, and the cases of Lakeside v. Dromgoole, 89 Ala. 505; Doss v. Peterson, 82 Ala. 253; Hart v. Clark, 54 Ala. 490, have no application. The plea purports to show the real consideration for which the note was given. It was not subject to the particular objections directed against it by the demurrer, and it was properly overruled.

These conclusions dispose of all the objections to the introduction of evidence, and also the exceptions to the refusal of the court to charge as requested by the defendant. All these exceptions are based upon the same principles of law, and which do not apply where the plea of failure or want of consideration is made to a suit upon a note, and the evidence is admissible under the plea. The plea was defective for indefiniteness as to the amount admitted to be due, but it •was not objected to on this account. Issue was joined upon it, and there was evidence tending to support the plea.—Mem. & Char. R. R. Co. v. Graham, 94 Ala. 545; Atlison v. Little, 93 Ala. 150.

. The application for a new trial was properly overruled. The record informs us that the parties agreed to go to trial upon the plea. There was no application for a continuance upon the filing of the special plea. The plaintiff was informed by this plea of the defense. He knew then whether he was prepared to meet it. He knew he did not have his books present. A party can not speculate upon the results of a trial and then become surprised at the result. There is no error in the record available to .appellant.

Affirmed.