122 So. 814 | Ala. | 1929
The complaint contained several counts, one declaring on a promissory note, the rest the common counts. Printed on the back of the note offered in evidence was the following:
"__________ hereby guarantee payment of the within note, including interest and attorney's fee, waiving presentment for payment, protest and notice of protest and all claims of exemption to real or personal property under the laws of Ala."
And then below in pencil:
"Balance 49.91 and interest
$10.00 Feb. 15.00 Mch. 15.00 Apr. 15.00 May 15.00 June 15.00 July 85.00 ------ 27.00 ------ 112.00 85."
By way of laying a predicate for his contention that the general charge against his plea of non est factum should not have been given, appellant, defendant below, argues that the memoranda indorsed upon the note in suit had been placed there at the time of the execution of the face of the note, thereby becoming an integral part thereof, and had been changed subsequently, and hence that the charge was erroneously given. As to whether the memoranda had been made that time the note was given, or later, the testimony was in conflict. In Seymour v. Farquhar,
The court committed no error in giving written charge 5 requested by plaintiff to the effect that the jury could not find for defendant under his plea of payment. The plea of tender was an admission of indebtedness.
Defendant filed a plea of usury. The evidence tended to show that interest in excess of the lawful rate was charged on plaintiff's books against defendant in some instances; but there is none to the effect that the original contract was usurious, nor even that defendant subsequently agreed to pay usury, and so defendant was not entitled to the charge against interest (assignment of error 6). Tutwiler v. Building Loan, *609
Plaintiff was allowed to testify that he sold fertilizer to defendant at a cheaper rate than to others and at less than the market price at Ashland, which seems to be the nearest market town. Defendant questioned the price charged to him for fertilizer. Plaintiff was entitled to the market price. If he charged defendant less than others or less than the market price at Ashland, his testimony to that effect was relevant and material. It might have been put in better form; the reference to others might have been eliminated; but the objections interposed, to the extent they were not merely general, were irrelevant, and the trial court will not be put in error for overruling them.
As touching the consideration of the note declared upon, defendant proposed several questions to plaintiff on cross-examination which had, and aptly served, the purpose of showing, or, rather, tending to show, that the figures on the back of the note had been changed by plaintiff. Defendant had signed the note along with one Joe Thurston, who was his tenant, and in fact he signed the note as surety for advances to be made by plaintiff to Thurston. The figures on the back of the note witnessed the amounts plaintiff was to advance during each month. The parties were not agreed as to the amounts so advanced, and, if we understand the bill of exceptions, defendant's purpose was to inquire in substance whether plaintiff had changed the memoranda. These questions should have been allowed. Their exclusion was error. Code, § 7731.
Defendant was complaining of some of the prices charged. We think it was proper for the plaintiff to show the wholesale price of the soda (nitrate) sold to Thurston as having some tendency to show that the retail price charged against him was not excessive, was not more than the true market value.
It is thought that what has been said will serve the purpose of another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.