63 So. 761 | Ala. Ct. App. | 1913
Under the evidence adduced at the trial, the maintenance of the claim of the plaintiff (the appellee here) to the personal property sued for was dependent upon his sustaining the contention, which there was evidence to support that at the time of the attempted foreclosure of a mortgage of that property which he had given he had paid in full the debt secured by that mortgage, with the result that the foreclosure was unauthorized and ineffectual to bar his title or right to the property.
The court was not in error in admitting the testimony of the plaintiff as to the value of the property sued for and as to the value of its rental or hire. It appeared from his testimony that he was acquainted with the property in question and had had opportunities of knowing the price at which that and similar property had been sold and rented. This was enough to qualify him to give his estimate or opinion as to the values in
On the cross-examination of the plaintiff, the facts were brought out that he had executed a mortgage of the property sued for, which the defendant introduced in evidence, and that the mortgagee, in response to the plaintiff’s written request, had furnished him a statement of the account secured by the mortgage. On the plaintiff’s redirect examination, after he had introduced in evidence the statement of account about which he had testified on his cross-examination, which statement showed a balance owing to the mortgagee on the mortgage debt, and had testified that the mortgagee had advertised and sold the property under the mortgage after the debt secured by it had been fully paid, he was ashed by his counsel to state whether or not the account which he had introduced in evidence was correct, and, if not, to state in what particulars it was incorrect. The defendant’s objection to this question was overruled. It is insisted in the argument of the counsel for the appellant that the objection should have been sustained on the grounds stated in support of it; that, the plaintiff himself having introduced the account in evidence, he could not be permitted, to elect to be bound by such parts of it, as might be favorable to him and to disaffirm such parts of it as might be unfavorable to him; and that, by introducing it in evidence without qualification or a statement of his purpose to contest any of its items, he had estopped himself to deny the correctness of the account in any particular. The rule that,
There was evidence tending to prove that the account as rendered by the mortgagee to the plaintiff became a stated one. But whatever presumption of the correctness of that statement may have been raised by
Under the evidence in the case there was no room for the controversy as to the property sued for having-belonged to the plaintiff. The defendant set up no claim to it except under a foreclosure of a mortgage of it which had been given by the plaintiff. In this situation it was plainly incumbent upon the defendant to sustain by proof any items embraced in the claim for the payment of which the mortgage was foreclosed which were not authorized by the mortgage itself. Only by the consent of the mortgagor could the mortgage stand as security for a debt or claim not- mentioned in it, and the party claiming that there was such consent had the burden of sustaining such claim by proof. Charge 1 given at the plaintiff’s request imported no more than this, and the court was not in error in giving it.
What already has been said is deemed sufficient to support the conclusion that the proposition stated in charge 2 given at the request of the plaintiff is one which, under the evidence in the case, the court could properly give in charge to the jury.
The fault in charge 1 requested by the defendant in instructing the jury that if they believed the evidence they must find for the defendant under the first count of the complaint, instead of instructing them that in such event they should not find for the plaintiff, or should not find against the defendant on that count, was enough to justify the court in its refusal to give it.
What has been said disposes of the assignments of error which counsel for the appellant have undertaken to support by argument.
Affirmed.