Foster v. Smith

104 Ala. 248 | Ala. | 1893

HEAD, J.

Detinue for mules by appellants against appellee. Plaintiffs relied on title by mortgage executed by defendant to one Tally, and by Tally transferred to them. It is not disputed that defendant owed some $170 on the mortgage debt, at the time of transfer. The plea was the general issue, with leave to give in evidence any special matter of defense. It was competent for defendant to prove payment of the mortgage debt to defeat the action. — Code, § 1870. It was also competent for him to put in issue the amount due upon the mortgage debt, to obtain the benefit of the provisions of section 2720 of the Code ; and if there was anything objectionable in the way this issue was made up, in the present case, the plaintiffs waived it by not objecting.

It appears that about the time of the transfer of the mortgage, the defendant became an agricultural tenant of the plaintiffs, and during this relation they had many mutual dealings — the plaintiffs making advances to the defendant, and incurring debts to him in divers ways. Defendant gave evidence in support 'of his claims, and further, that they were — the most of them — incurred, under agreement with plaintiffs, that they were to be credited on the mortgage debt. Plaintiffs gave evidence in support of their demands, outside of the mortgage debt, and, further, evidence tending to show that it was expressly agreed that defendant was to be credited on the mortgage debt with only such balance as might be ascertained in his favor, on a settlement of their mutual accounts outside of the mortgage debt, to be had between them at the end of the year. That settlement never took place ; and one of the questions raised by the record is, whether, if plaintiffs’ version of the agreement be true, the court can now make the settlement between the parties and ascertain the balance, if any, which the defendant is entitled to have applied to the mortgage debt. The court decided this question, correctly as we think, in favor of the defendant. According to this version, defendant was entitled to have a settlement and the benefit of any balance in his favor, to go in payment or dimunution of the mortgage debt, at the time contemplated by the parties for the settlement to be made ; and if not had voluntarily, the law affords either party a remedy, in the courts, to coerce it; otherwise one might be deprived of valuable rights -by the willful refusal of the other to settle. There appears to be no such complication of accounts as that a court of law cannot adjust them. It is a constant practice to settle such accounts before juries. The two charges requested by the plaintiffs were, therefore, properly refused.

There was much conflict in the evidence as to the correctness of many of the mutual demands. The plaintiff, Budder, who had kept the accounts for plaintiffs, when on the stand as witness, produced a memorandum which he had made out, and which he testified showed correctly every item of debit and credit between the parties. It does not appear that this memorandum was used to refresh his recollection as a witness, or to supply the place of recollection, upon proof that he knew of its correctness at the time it was made out, and from that fact, without recollection of the items, presently knew it to be correct. See Acklen v. Hickman, 63 Ala. 494. But he proposed to introduce the paper in evidence, not as evidence of the correctness of the account, but to aid the jury in recollecting his testimony as to what the correct items of account were, he having testified, from independent recollection, to the correctness of each item on the memorandum. It has been several times decided by this court that it is not error to allow an account to go to the j ury under such circumstances, and for such a purpose. — Hirschfelder v. Levy, 69 Ala. 351; Mooney v. Hough, 84 Ala. 80 ; Snodgrass v. Coulson, 90 Ala. 347. The question now is, whether it is error to refuse so to allow it. The writer-is inclined to the opinion that the admission to the jury of such memoranda, under the circumstances of this case, for the purpose mentioned, should be left to the sound discretion of the trial court; but the other members of the court think, and we so hold, that it is a valuable right of the party offering it, the denial of which is a reversible error.

There was no error in refusing to permit the witness, Rudder, to testif}»- what the land cultivated by defendant would have made with proper cultivation. We can see no possible relevancy of such testimony to any issue before the jury.

In stating the accounts between the parties before the jury the burden was on plaintiffs to prove the correctness of their account, and the court properly so instructed the jury.

Reversed and remanded.