41 So. 756 | Ala. | 1906
This was an action commenced by attachment on promissory notes, given for commercial fexdilkers. Common counts were afterwards added, and various questions and exceptions raised thereon, and finally the general charge was given in favor of plaintiff on the counts based on the notes, and judgment rendered for plaintiff (appellee).
A motion is made by appellee to strike the. bill of ex-' ceptions for failure to comply with rule 33, subd. 5, circuit court (Code 1896, p. 1201). While there are. some portions of the testimony which might- have been shortened, yet the greater part of that to which attention has been called -as having been unnecessarily set out in ex-
The plantiff contends that the court was authorized to give the general charge in favor of the plaintiff, on the counts based on the notes, because the defendant was estopped by his pleadings from denying the validity of the notes; the defendant- haying interposed pleas to the common counts, setting up payment of the demands sued on, by the execution of the notes, and, under the rulings of the court, having gone to trial on said issue. “It is true that a party who has with knowledge of the facts assumed a particular position in judicial proceedings is estopped to assume a positon inconsistent therewith, to the prejudice of the. adverse party,” or, as otherwise expressed, “a party who defeats a judgment, by pleading or presenting a thing or judgment in one aspect, is estopped from giving it another, in the same or another suit, founded on the same subject matter.” — 16 Cyc. p. 796; Pres. Con. of S. v. Williams, 9 Wend. (N. Y.) 147; Ogden v. Rowley, 15 Ind. 56; State Nat. Bank v. N. W. P. Co., 35 Iowa, 226; Hooker v. Hubbard, 102 Mass. 239;
There was no error in overruling the demurrer to the fifth count. The agreement to pay an attorney’s fee is one additional to the regular obligation of the note, and there is no objection to embodying in one count a claim for all the attorney’s fees claimed in the suit, as it is all one subject, and no confusion arises therefrom.
There was no error in thé ruling of the court excluding the certified copy of register of fertilizers manufactured, as it wa.s merely negative evidence, and did not show that plaintiff had not filed a proper paper.
For the - error in giving the general charge for the plaintiff, the judgment of the court is reversed, and the cause remanded.