First National Bank v. Chaffin, 118 Ala. 246

First National Bank v. Chaffin

118 Ala. 246 | Ala. | 1897

Lead Opinion

McCLELLAN, J.

This action is prosecuted by the appellant bank against John W. and M. A. Chaffin for the recovery of money which defendants by writing under seal had promised to pay W..F. Smith, the transferror of plaintiff. Defendants pleaded: (1) payment; (2) payment to Smith without notice that the obligations had been by him assigned to plaintiff; (3) payment to Smith shortly after maturity, and that the bonds Avere then surrendered to them by Smith; and (4) payment to Smith Avho had the obligations for collection as agent of the bank, and who upon such payment surrendered the same to defendants. Plaintiff filed replications to said pleas as follows: “1st. That all the said pleas are untrue. 2nd. That said defendants are estopped from setting up said defense in said suit, for that before the bringing of this suit, and after the said notes fell due and after notice from said plaintiff that it held said notes [and after the time defendants claim. to have paid said, no tes], the defendants stated to the plaintiff that they were indebted upon said notes in the sum of $125 or $150, and agreed with the said plaintiff to pay said sum, and that upon the said statement and representation of the said defendants the said plaintiff brought this suit, and plaintiff alleges that said defendants are estopped thereby, and cannot set up the said defense herein sought to be pleaded.” Defendants’ demurrer to this replication Avas sustained by the court; and the propriety of that ruling is challenged by the first assignment of error.

The demurrer was properly sustained. The gist of the replication is that defendants admitted owing a balance on the notes, and promised to pay it. The admission can operate only evidentially as going to show indebtedness, and not by way of estoppel to show the truth of the admission to the contrary notwithstanding. And the promise to pay is not supported by a consideration unless in point of abstract fact there was an unpaid balance; in AAhich latter case the promise would be of no advantage to plaintiff — except, perhaps, as tending to show a balance unpaid on the original obli*256gation — since recovery could be had on the notes themselves without the new promise. The case of Myers v. Byars, 99 Ala. 484, upon which reliance is put by appellant- in this connection, is clearly distinguishable from- the case at bar. In -that case Myers agreed with Byars and Landrum-to hold $1,000, part of a certain fund, to awmit the decision of the courts as to whether 'that sum belonged to Byars or not, and the action against Myers for the-sum he thus agreed to hold was brought upon his - assurance to Byars that he had received the fund and then had it. Mj^ers was held estopped .to disclaim or deny his receipt - and possession of the fund, on the same principle that a party wdio represents that he has possession of chattels, choses in action or valuable papers, and thereby -induces an action of detinue for their recovery, is held estopped to deny or disclaim such possession. — -Sullivan et al. v. Conway, 81 Ala. 153; Hall v. White, 3 C. & P. 136. But the principle has never been applied to a mere admission of indebtedness.

This cause wTas tried upon oral testimony by the judge of the city court without a jury, as authorized by the statute creating that court. On the. issue of payment vel non• — the only issue in the case — there was much of illegal and incompetent testimony adduced by the defendants against the objection of the plaintiff. If, however, all this had been rejected, and only the legal evidence set forth in the abstract had been introduced, it wTould, though conflicting, be sufficient to support the conclusion of the court, that the notes sued on had been paid, on appeal to this court under the rule for revising such conclusions declared in Woodrow v. Hawving, 105 Ala. 240. And it has been repeatedly, though not uniformly, held, before and since, as also in that adjudication, that, in such case on appeal, the conclusion and judgment below will be referred to the legal evidence before the trial court, and concurred in and affirmed notwithstanding the errors committed in the admission of illegal testimony. — Knife Co. v. Umbenhauer, 107 Ala. 496; Holmes v. State, 108 Ala. 24; Woodrow v. Hawving, supra; Kirksey v. Kirksey, 41 Ala. 626; Gaillard v. Duke, 57 Ala. 619. But, with obvious propriety, it has been decided that the rule just *257stated does not apply, “when it appears that the judgment Avas based upon illegal evidence, which was received against the objection and exception of the appellant, and Avithout Avhich the judgment cannot be supported.” — Dolan v. Dolan, 89 Ala. 256. On the other hand, in the best considered case Ave recall upon this; subject, the rule itself was expressly and unequivocally repudiated, upon grounds Avhich carry conviction of the correctness of the conclusion reached with them, when we keep in mind that the trial judge in such cases is the jury, that his finding of fact Avill be disturbed only upon such appearance of error therein as Avould justify the setting aside of the Amrdict of a jury, that the appellate court cannot know that such finding was uninfluenced by illegal testimony any more than it can know that testimony improperly allowed to go to a jury Aims without effect upon their Arerdict, and hence in neither case can be assured that the erroneous admission of testimony Avorked no injury to the party objecting; and, finally, that the application of the rule to any case in Avhich the legal evidence is materially conflicting may well lead to and require the affirmance of a judgment which never should have been rendered, "and AAdiich would not have been rendered but for an erroneous view taken by the trial judge as to the admissibility of testimony. The case referred to is Harwood, Admr. v. Harper et al., 54 Ala. 659. There the rule for revising the conclusion of fact reached by a judge sitting without jury is declared to be that a judgment or decree based upon and folloAving such conclusion Avill not be reversed unless' it is manifestly wrong; “and where illegal evidence is admitted, the presumption of injury arises, compelling a reversal, unless the remaining evidence is Avithout conflict, and supports the judgment.” The opinion on this point by Brickebl, C. J., is so clear that we venture to reproduce it here: “The court of probate, on the settlement of administrations, determines questions of fact Avithout the intervention of a jury. Its action upon the whole evidence thus becomes matter of law, reAdsable on error. It has groAvn to be a rule of practice not to reverse its judgment on the facts unless it is manifestly wrong. In Bogle v. Bogle, 23 Ala. 544, it is held, when the whole evidence is set out, its judgment *258should not he reversed, if, rejecting illegal evidence which may have been received, enough remains to support it. In Mims v. Sturdevant, 23 Ala. 664, the decree of the court was reversed for the single error of admit-, ting incompetent evidence, though it was urged the admission of such evidence worked no. injury, as without it there ivas abundant evidence to support the decree. The court said in answer: lit is true the bill of exceptions sets out much other evidence, but it is not for this court to say that the proof was abundant without the evidence in question, and that, therefore, no injury could arise from the admission of the testimony. The rule of this court is, that it will presume injury from error, unless the record itself rebuts the presumption. This the record, in our opinion, does not do. We may have our own private opinion as to which side has the advantage in the weight of testimony offered, but we cannot pretend to say the court below was not materially influenced by the evidence in question. If the defendants in error would avail themselves of the principle which they invoke, they should show by the bill of exceptions, or in some other manner by the record, that the court below was in no respect influenced by the testimony admitted, or that no injury resulted to the plaintiff in error from the ruling of the court.’. Again it is said, the question was one purely of the competency of the evidence offered. In Kirksey v. Kirksey, 41 Ala. 626, without any reference to former decisions, it was said, in revising the decree of the court of probate on a final settlement, each assignment of error relating only to the admission or rejection of evidence, that fin passing on the merits of the case, we must look at the evidence, as the probate judge should have done; and, consequently, no. injury will result from the admission of illegal or irrelevant testimony.’ The decree of the court of probate, was reversed, and yet the only errors the court could have committed was in the admission or exclusion of evidence. It cannot be doubted that when illegal evidence is admitted, or'legal evidence excluded, on a trial before a jury, the error creates presumption of, injury, compelling a reversal, unless the presumption is repelled. We do not propose now to examine the. yarious decisions on the point, but a criti*259cal analysis of them will result in this, that the evidence admitted, or rejected, discarding all considerations of its credibility, was merely superfluous or cumulative, when the presumption of injury has been regarded as repelled. The court has never assumed to enter the jury box, and say the jury ought not to have been affected by the evidence admitted, or could not have been by the evidence excluded, if it had been admitted. It is enough that the one or the other could have had a legitimate influence on the jury. How far the jury ought to have been controlled by the one or the other is a matter resting in the honest, enlightened and just discretion of the court, on a motion for a new trial. In our system, the judge is often substituted for the .jury, ancl is made not only to declare the law, but is the trier of facts. From his judgment an appeal lies to this court. The record discloses all the evidence, and that parts of it were admitted, against the party complaining of error. How can tins court pronounce judgment? A judgment should never be reversed here, unless it can be said, in the language of the common law writ of error, there is ‘manifest error to the great prejudice’ of the party appealing. When error is found, the presumption of prejudice or injury arises, and unless it is clearly repelled, a reversal must follow. If illegal evidence has been admitted the judgment must be reversed, unless the remaining evidence is without conflict, and supports the judgment. When there is conflict, and the judgment can be supported only by an inquiry as to the credibility of the witnesses, and the preponderance of evidence, it is better to submit that question anew to the decision of the primary court, which can have t'he witnesses before it, and, observing their demeanor, is the better able to pass on their credibility. Discarding the evidence we have declared inadmissible, that remaining is in painful conflict, and without expressing an opinion as to its weight, we are not prepared to render judgment on it.”

We see no escape from the conclusion enforced by these views. The conclusion, indeed, follows so logically and necessarily from the premises — a trial of an issue of contested fact on oral testimony by a judge sitting as a jury, the admission of illegal evidence, con-*260dieting legal evidence — that we are impelled to return to and adopt it as embodying the true rule of appellate action in such cases, notwithstanding our reluctance to overrule or modify so many of our own decisions taking a contrary view.

The judgment now before us must be.reversed, therefore, since we have assurance neither that it should nor that it would have been rendered by the judge of the city court had the illegal evidence been rejected by him; and, for the purposes of another trial, we will avert briefly to the court’s rulings upon the admissibility of testimony.

The ledger accounts of Warren F. Smith, deceased, against the defendants and the testimony of E. J. Smith in, relation thereto should have been excluded for the reason that said accounts do not appear prima facie, and are not shown to have been, the original entries made contemporaneously with the sales and payments noted in them. — Dismukes v. Tolson, 67 Ala. 386; Horton v. Miller, 84 Ala. 537.

The notes sued on having been made to Warren F. Smith and by him transferred to the plaintiff as collateral security to a note which plaintiff held against him, his estate, he being dead, was obviously interested on the issue whether they had been paid by the defendants to him in his lifetime, as the agent of the plaintiff, or without notice of the transfer; and under the statute, John W. Chaffin, a party defendant to the action, was incompetent to testify that he had paid the notes to Smith. — Acts, 1890-91, p. 557; Dismukes v. Tolson, 67 Ala. 386.

There was no error in overruling the objections to interrogatories propounded by defendants to the witness Hudson. It is not pretended -that the papers attached to the interrogatories marked “Exhibit A” were not correct copies of the notes in suit and inquired about in the interrogatories; and the purpose of attaching these copies was merely to describe and identify the notes to the witness that he might intelligently testify on the issue of their payment; and with no view of proving the contents of the notes.

For the errors committed by the trial court in the admission of the book accounts and the testimony of E. *261J. Smith as to the payment of said accounts, of which it was shown he had no knowledge except that derived from the accounts themselves,' and in the admission of the testimony of one of the defendants in reference to payments made to Warren F. Smith in his lifetime, the judgment of the city court must be reversed. The cause will be remanded.

Reversed and remanded.

Dissenting Opinion

COLEMAN, J.,

dissenting. — This case was tried by the court without the intervention of a jury, and judgment rendered for the defendants. It cannot be questioned that the court erred in the admission of illegal eA’idence offered by the defendants; and the first question for consideration is, whether such error as matter of right entitles the appellant to a reversal. The rule settled by a long line of decisions, to' which there have been hut few exceptions, is, that where the court decides upon the facts as Avell as pronounces the law, if the legal evidence justified the finding, the judgment Avould be affirmed, notwithstanding the court had admitted the introduction of illegal eAddence.

In the case of Bogle v. Bogle, 23 Ala. 544, the court uses the following language: “We consider it unnecessary to inquire into the rulings of the court upon the other portions of the evidence. Much of it Avas illegal, but if it had all been rejected, Ave think enough remains to sustain the judgment of the court; and as under the act of 11 February, 1850, (Pamphlet Acts, 27), it is the duty of the court to decide questions of fact, growing out of administrations, without the intervention of a jury, unless upon the application of one of the parties, it follows that its action upon the whole evidence is a matter of law, and revisable here in the same manner as the decision of the court upon questions of fact arising upon a trial in the common laAV forums, which are referred to the court rather than the jury; as Avhere the competency of a Avitness is to be determined, the loss of a Avriting, or other questions of a like character. In these cases, this court Avill look to the whole evidence, if it is to be found in the record, and aauII not send it back for another trial, if enough remains to sustain its judgment, rejecting testimony Avliich may have been 'illegally admitted.”

*262In the case of Kirksey v. Kirksey, 41 Ala. 626, 635, the court uses the following language: “In passing on the merits of the case, we must look at the evidence as the probate judge should have done; and consequently no injury will result to appellants from the admission of illegal or irrelevant testimony.” In the case cited, the court critically examined the legal evidence, though conflicting, and reversed the judgment, not because of the admission of illegal evidence, but because the legal evidence did not warrant the finding of the trial court.

In Hurt v. Nave, 49 Ala. 459, it was said: “When a cause is tried without the intervention of a jury, the appellate court will not scan with critical accuracy, mere technical objections to evidence which was admitted, but will presume that the presiding judge, in making-up his decision, disregarded all illegal evidence.”

In Gaillard v. Duke, 57 Ala. 619, the.same rule was held, the court declaring, that the cause would not be reversed, because of the admission of irrelevant testimony.

In McDonald v. Jacobs, 85 Ala. 64, it was held that the admission of illegal, evidence, “would be error without injury, as the decree of the probate court is fully sustained without this evidence.”

In Dolan v. Dolan, 89 Ala. 256, it was said, that the rule does not apply “when it appears that the conclusion and judgment of the court are based upon illegal and incompetent evidence, without the consideration of which the finding cannot be supported.”

In Woodrow v. Hawving, 105 Ala. 240, it was held that when the case was tried by the court without a jury, although the trial court may have erred in the admission of evidence, yet if the judgment is sustained by all the legal evidence, this court will not reverse the case.

In Holmes v. The State, 108 Ala. 24, the same rule was declared, the court saying, “the presumption being here indulged that the action of the court in rendering its judgment, was induced by and rested upon the sufficient legal evidence.”

In Ramey v. Peeples Grocery Co., Ib. 476, we have the same principle declared; also in Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496; Manufacturing Co. v. *263Bessemer Co., 111 Ala. 332; Machine Works v. Furniture Co., 112 Ala. 488.

Other cases might be cited. In one of the latest decisions by this court — Scarbrough v. Borders, 115 Ala. 436 — the legal evidence was conflicting, and there were exceptions to the rulings of the court upon the admission of this testimony. Following the many decisions of this court, Haralson, J., speaking for the court, said: “The court rendered judgment on the evidence in favor of the defendant. We Avill not review the evidence. It Avas not free from conflict.” “On the trial by the court Avithout a jury, error in the admission of eAddence will not work a reversal, if the judgment rendered is sustained by the legal evidence.” The case was affirmed, on the ground that the legal evidence sustained the judgment, although there was conflict in the legal eAddence, and although the record may have shown the admission of illegal evidence. This principle Avas clearly recognized in the case of Dolan v. Dolan, 89 Ala. 256, the court adding that it has “no application, when it appears that the conclusion and judgment of the court are based upon illegal and incompetent evidence, Avithout the consideration of which the finding cannot be supported.” The rule with this qualification has become the settled Iuav of this State.

It is true that in the case of- Harwood v. Harper, 54 Ala. 669, it was said, “if illegal evidence has been admitted, the judgment must be reversed, unless the remaining eAddence is without conflict and supports the judgment.” This rule is at variance Avith the established doctrine of this court, when applied to cases tried by the court Avithout a jury. It is rare that a case tried by the court Avithout the intervention of a jury, comes to this court for review in Avhich there was no conflict in the evidence, and it has neArer been held or contended, that a mere conflict in the evidence entitled the appellant to a reversal. If the rule stated in Bogle v. Bogle, 23 Ala. 544, 546, that “in these cases (tried by the court without a jury), this court will look to the whole evidence, if it is to be found in the record, and will not send it back for another trial, if enough remains to sustain its judgment, rejecting testimony which may have been illegally admitted;” and in Kirk*264sey v. Kirksey, 41 Ala. supra, p. 655, where it is said: “Part of their evidence was clearly admissible and other parts were objectionable. * * * All the evidence being set ont, and being addressed to the court, and not to the jury, it was at most error without injury. pasging 0n the merits of the case, we must look at the evidence as the probate judge should have done, and consequently no injury will result to appellants from the admission of illegal or irrelevant testimony;” and in the many other cases cited supra, be applied, the illegal and irrelevant evidence will be rejected, and the cause considered precisely as if there had been no illegal evidence admitted. There has always been a distinction, in cases tried by the court without a jury, and cases where the facts were submitted to a jury.

In view of the long line of decisions, establishing the practice of this court, all of which must be set aside and overruled, in order to declare the principle now contended for, namely, that if on a trial by the court without a jury, there is error in the admission of evidence, the case must be reversed, unless all the legal evidence is without conflict and supports the judgment of • the trial court, we cannot yield our assent to its adoption.

We will now briefly refer to the evidence. After rejecting the illegal evidence, to-wit, the ledger accounts of Warren F. Smith, deceased, against the defendants, and the testimony of E. J. Smith, in relation thereto (Dismukes v. Tolson, 67 Ala. 386; Horton v. Miller, 84 Ala. 587), and the testimony of John W. Chaffin, a party defendant to the action, that he had paid the notes to Smith in his lifetime, as the agent of the plaintiff to collect them, (Acts of 1890-91, p. 557; 67 Ala. supra) the only material conflict relates to the admission of one of the defendants, John W. Chaffin, as to whether there was a balance due on the notes sued upon. There was no conflict of the execution of the notes, the transfer to plaintiff by the payee, Warren F. Smith, as collateral security, their re:delivery subsequently to 'him, and that he was to collect the notes as the agent of the plaintiff. John W. Dixon, a disinterested witness, testified that the defendant admitted on two occasions, that there was still due on the notes *265about $125. B. F. Cliett, a disinterested witness introduced by the defendant, testified that John W. Chaffin admitted to Dixon that he owed from $100 to $125 on the note. There was the letter also, signed “John W. Chaffin, May A. Chaffin, his mother.”

John W. Chaffin himself denied having stated that he owed any amount on the notes, but admitted that he said his mother owed a balance on account to W. F. Smith, and that he thought it was about one hundred dollars. If there were no other facts to support the plea of payment but those stated, we might proceed to render judgment for plaintiff, but there are some other facts in the case, and there are circumstances which lead us to believe the existence of legal evidence, as to facts which we are not at liberty to consider, in the condition of the record. The record presents a case Avhich in our opinion necessitates a reversal and remandment of the cause, that exact justice may be done between the parties.

Where a mortgage secures a note and also such additional indebtedness as may be contracted, if the mortgaged property is applied to such additional indebtedness- in preference to the notes, it cannot be said to have been illegally applied, there being no direction or agreement that it should be otherwise applied.

We think the demurrer to plaintiff’s replication properly sustained, and Ave find no error in overruling the objections to interrogatories propounded by the defendants to the Avitness Hudson.

Concurrence Opinion

Haralson, J.,

concurs in the foregoing opinion. All concur in the reversal of the judgment of the trial court.