Garrison v. Glass

139 Ala. 512 | Ala. | 1903

TYSON, J. —

The order made by the court consolidating the two causes was entirely proper. — Section 3318 of the Code; Berry v. Ferguson, 58 Ala. 314; Wilkinson v. Black, 80 Ala. 329.

The first count in each of the complaints set forth in haec verba the contract between the parties. By its terms the defendant obligated himself unconditionally to pay to plaintiff one-half of the balance of the purchase money for the timber within six months from the date of the contract, and the remainder of said purchase money within twelve months. The first of these actions was brought for the installment first maturing and the second action for the last installment. The contract contains the further stipulation that if the defendant fails or refuses to pay all of the said purchase money within the time specified, then said contract is forfeited. The theory of the defense is that this clause, the defendant having failed to pay, worked an entire forfeiture of the contract, and relieved him of all liability thereon. And the demurrer to these counts of the complaint, which was overruled, proceeded upon this theory. The clause under consideration was a reservation for the benefit of the plaintiff, the vendor, which he may have waived or enforced.- — Lowery v. Peterson, 75 Ala. 109. Tie elected to waive it by seeking to enforce the payment of the purchase price by bringing his action. ' This he had a right to do. The demurrer was properly overruled.

We have been unable to find an interrogatory to Avldch the answer, that was stricken, was responsive. There was, therefore, no error in the ruling of the court in this resect. — First National Bank v. Leland, 122 Ala. 289. We do not understand that a defendant to whom interrogatories are .propounded under the statute (section 1850 of the Code) has the right to inject into his answer matter not called for, and when he does the plaintiff certainly has the right to have them eliminated. If this was not the rule, the party to whom interrogatories are propounded could in nearly every instance defeat the purposes of the statute and deprive the opposite party of its benefit. Self-serving statements, uncalled for, are no part of the deposition unless the party offering the deposition makes them so. Each of the counts of the complaint upon which the case was tried declared upon the special contract, above referred to, in which tlie^price of the timber was fixed.

In other words, the plaintiff sought a recovery alone for the contract price of the timber. There is no count in the complaint for goods, wares, etc., sold. The defenses were want of consideration, failure of consideration and fraud inducing the making of the contract.

Under these issues we are unable to see the relevancy of the question propounded, on' cross-examination, to witness Glass, “what was the value of the timber on the land per acre, that lie sold defendant, at the time of the sale?” The objection interposed to the testimony of witness Jones, proceeded on the theory that his survey was incompetent as evidence because -not made in pursuance of the provisions of the statute, section 3895 of the Code. Had the plat made by him been offered as an official survey and an objection interposed to its introduction, the point might have been well taken. But the plat was not so offered, and besides there was no objection to its introduction. The objections that were made went to the testimony of Jones, which was clearly not subject to any one of them.' — Hess v. Buckler, 117 Ala. 529.

In view of the testimony offered by defendant tending to show that the plat or survey of the timbered land included some open lands, it was entirely proper for the plaintiff in rebuttal to show that this open land was not a part of the Glass tract, and that it ivas occupied by one Hollis and in fact belonged to him. Being a collateral or incidental matter, it ivas not necessary that Hollis’ ownership be shown by deed. — 3 Mayfield’s Dig. 460, § 482,et seq. -

The evidence clearly afforded adverse inference upon every issue of fact presented by the pleadings. The affirmative charge requested by the defendant was, therefore, properly refused. — 2 Mayfield’s Dig., 561, § 17.

Charge 4 imposed the burden on the plaintiff of proving the execution of the contract, the foundation of .the suit. No such burden existed, as no plea of non est fact urn was interposed. The other written charges refused to defendant are not insisted upon. We have considered every point insisted upon in argument and find no error in the record.

Affirmed.