62 So. 384 | Ala. Ct. App. | 1913
To this action on an account the defendant (the appellee here) pleaded the general issue, payment, and set-off. The plea of set-off was supported by evidence tending to prove the following state of facts: Under a contract between the parties the de
It was not error to sustain the defendant’s objection to the question propounded to him, “You agreed to settle if they would allow you that reduction, didn’t you?” It appears from the bill of exceptions that if the defendant made the offer inquired about he did so in an effort to adjust or compromise a claim against him, the cor
The contention of the appellant that it was entitled to the instruction embodied in charge 1 requested by it is based upon the circumstance that there was undisputed evidence to the effect that in January, 1911, the defendant remitted to the plaintiff a check for an amount stated to be in full settlement of the account to that date, except as to one suit of clothes, claimed by the defendant to have been returned, hut which the plaintiff claimed it had not received. In view of the evidence tending to show that at the time that remittance was made, and after that time, the defendant was claiming that he had been deprived, in the way above indicated, of a part of the compensation to which lie was entitled, and that this claim of his continued to be treated by the plaintiff as a matter for future adjustment, the inference would not have been unwarranted that the remittance in question was made and accepted as a full settlement of the plaintiff’s claim against the defendant for the price of the clothing shipped to the latter, except as to the one item mentioned, but not of the counterclaim of the defendant in reference to his compensation, which both parties continued to treat as an unadjusted matter. In this condition of the evidence the court was justified in declining to give a charge which assumed that that counterclaim, so far as it was based upon transactions prior to the date referred to, had been settled or adjusted.
In the absence of affirmative and undisputed evidence of the correctness of the account sued on, or that the amount properly chargeable against the defendant was greater than the amount which there was evidence tend
Affirmed.