68 Ala. 432 | Ala. | 1880
When this case was before us at a former .term, we drew a distinction between tbe defense of payment, and that which could come in in the nature of set-off As to the former, we said : “It is alleged that, in consideration of ‘articles of comfort and support of the household/ &c., furnished and to be furnished by Castleman to Jeffries and wife, Jeffries, tbe husband and trustee, turned over and paid to Castleman the two checks, which were received and used as so much money. If this be so, and if such articles were furnished in value equal to, or greater than, the sum of the two checks and the premium thereon, then this is a complete defense to the action, and could be given in evidence under tbe general plea of payment.” [This statement of the principle, if sustained by the proof, gives to the plea of payment a much wider range than is covered by the defense of set-off.] “Set-off, being in its nature a cross action, or revocatory suit, must be pleaded with the same formality which would be required in a complaint, if it were made the cause of an action brought.” This distinction marks the difference between the two lines of defense. Tbe one would cover all articles previously purchased, without regard to their character. The latter would embrace only such articles of comfort and support of the household as the statute provides for.—See Castleman v. Jeffries, 60 Ala. 380.
The defendant testified to a state of facts, which, if believed, sustained bis plea of payment. He offered in evidence, in eorroboration of his own and late partner’s testimony probably, the entry he had caused his book-keeper to make on. bis books, to the effect that the cheeks were received to be collected and plaeed, with premium, to Mr. Jef-fries’ eredit. The terms on which these cheeks were received by Castleman, is the important question of fact which was controverted -in the Circuit Court. There were two witnesses, against two. If defendant’s version was true, then they were received in payment. If plaintiff’s was the true version, then it eould be set-off at most. The testimony offered by the defendant, mentioned above, was received by the court, against the objection and exception of the plaintiff. In this, the Circuit Court erred. ' It .was allowing Castleman to prove, in his own favor, a memorandum he had had made, without any testimony tending to show Jeffries assented to it, or knew of its existence.—Acklen v. Hickman, 63 Ala. 494. We can not know .what influence this testimony exerted in the finding, and henee are not able to affirm it was error without injury.
We find no other error in the record.
He ver sed and remanded.