89 Ala. 577 | Ala. | 1889
The action is brought by appellant, as mortgagee, against appellee, as mortgagor, for the recovery of personal property in specie. In such suit, the statute provides, that “the defendant may, upon suggestion, require that the jury ascertain the amount of the mortgage debt, and such ascertainment must be entered on the record of the judgment.” — Code, § 2720. The judgment-entry recites, that “the defendant pleads not guilty, and issue being joined on the plea of general issue;” and the certificate of the clerk shows, that the special pleas, which appear in the record, were filed in his office after the trial of the cause. It may be that, if the judgment-entry did not distinctly and positively recite the issue joined, we would presume, in support of the rulings of the court, that the case was tried on the special pleas, though not indorsed filed; but, in the state of the record, we can not indulge such presumption, and must treat the case as if tried on the general issue alone.
The defendant was allowed to prove an agreement on the part of the mortgagee, to furnish him supplies and a mule, • which was the consideration of the mortgage debt, his failure to furnish the mule, and the damages resulting from the breach of the contract. Under the general issue, the mortgagor can not prove payment of the mortgage debt; and under the statute, a suggestion is necessary to require the jury to ascertain its amount.—Slaughter v. Swift, Murphy & Co., 67 Ala. 494 In the absence of a special plea or suggestion, 'the evidence was inadmissible. We do not mean to be understood, however, as holding that the mortgagor can, under the present statute, plead, in an action of detinue, set-off or recoupment against the mortgage debt, the prior statute having been materially changed by section 2720. The operation and consequence of the alteration, we leave an open question until properly presented.
The court also erred in admitting evidence of the quantity of corn and cotton which the land of defendant would ordinarily make with ordinary cultivation, for the purpose of showing the damage suffered by him in consequence of the breach of the contract. We have uniformly held that profits, when they do not form a constituent element of the contract, and the amount can not be ascertained with reasonable certainty from established data, are not the natural and proximate consequences of the breach of the contract, and are contingent and speculative.—Burton v. Kelly, 29 Ala.
Beversed and remanded.
