Denton Bros. v. Foster, 195 Ala. 53

Denton Bros. v. Foster

195 Ala. 53 | Ala. | 1915

McCLELLAN, J.

This action was instituted by the appellee against the appellants, composing a partnership, to recover the statutory penalty for their failure to enter the satisfaction of a chattel mortgage on the margin of the record thereon within the time prescribed, after notice. — Code, § 4898.

(1,2) The first count omitted to set forth the amount of the mortgage executed by the plaintiff to the firm, a blank space being left therefor. It is now insisted that because of the omission stated the count did not set forth a cause of action. It is not essential to the sufficient statement of a good cause of action to recover the penalty described by the statute (section 4898) that the amount of the mortgage debt be allowed. A sufficient description of the mortgage, for the purposes of the action, may be set forth without averring the amount of the debt secured by the mortgage. See Williams v. Bowdin, 68 Ala. 126; Johnson v. Frix, 177 Ala. 251, 58 South. 427. The record of the mortgage — even though the instrument was not self-proving and though the mortgage was not probated for record — was not erroneously admitted in evidence in support of the allegation that it was recorded. — Steiner v. Snow, 80 Ala. 45; Horton v. Barlow, 108 Ala. 417, 18 South. 890. The plaintiff, the mortgagor, himself testified that he executed the mortgage; and there was no questioning of this fact on the trial.

(3) The mortgage by its terms purported to secure “the payment of this note and other sums I may owe the payees be*55fore this note is paid.” The payees were Denton Bros., and not Dr. Denton, who was a physician practicing his profession independently of the mercantile firm to which the mortgage was made. It was contended that the plaintiff had not paid the mortgage in full, because he had not paid in full a physician’s bill to Dr. Denton. The doctor testified that the plaintiff agreed that the bill for medical services should be secured by this mortgage to the firm. The medical bill appears to have been claimed as for services to the plaintiff and his family and to one Burton who was ill at plaintiff’s home. The plaintiff contended that the mortgage debt did not include any part of his bill for medical services, and that this matter was entirely distinct from the mortgage debt to the firm, that he made no such agreement as the doctor affirmed, and that he was not due the doctor or the firm anything because of services to Burton. Under the evidence the issue of payment vel non of the mortgage debt was for the jury; and within it was the further issue, viz., what constituted and what was the mortgage debt to the firm, which was likewise a matter necessary to be sumitted to the jury.'

(4) The court correctly gave charge 3 at the request of the plaintiff. Its effect consisted with the testimony of Dr. Denton. As has been indicated, his testimony necessarily only referred the matter of the inclusion of the claim for medical services to a demand or demands that accrued up to the execution of the mortgage. The terms of the mortgage and his testimony forbid the acceptance of any idea that the mortgage was given to secure the payment of bills for medical services rendered subsequent to the execution of the mortgage.

(5) Upon like considerations there was no error in giving charge 4 upon plaintiff’s request.

(6) Charge 4, refused to defendant, was predicated of an assumption not justified by the evidence, viz., that the mortgage was given to secure the payment of bills incurred or to be incurred for medical services subsequent to the execution of the mortgage.

None of the assignments of error insisted upon in brief for appellants are well taken. The judgment must be affirmed.

Affirmed.

Anderson, C. J., and Sayre and Thomas, JJ., concur.