50 So. 402 | Ala. | 1909
This was an action hy the appellee against the appellants to recover on an account which appellee claims was due him from appellants by account for rent and supplies for the year 1902. Both defendants pleaded the general issue, and the defendant Lord interposed special pleas of the statute of frauds and set-off. No demurrers were filed to the complaint or to the pleas, and the trial was had upon these issues, resulting in a verdict and judgment for the plaintiff against both defendants. From this judgment they appeal, and here separately assign errors.
The trial seems to have been had upon an entire misapprehension of the pleadings; in fact,’ counsel state that there was a plea of the statute of limitations filed by Lord. We find no plea of the statute of limitations, but, on the other hand, we find a plea, of the statute of frauds, which seems to have been entirely ignored in the trial below, by both court and counsel. The action is on a joint account against the defendants jointly. The evidence of the plaintiff in the court below tended to show that the defendant Lord was liable, and not the defendant Mixon; while the evidence offered by the defendants tended to show that the defendant Bettie Mix-on alone made and owed the account. In either event, there was an entire variance. The action being a joint one, and the evidence of the plaintiff tending to show that one of the defendants was liable, and that of the
The court, avus clearly and unquestionably in error in alloAving all the evidence in this case relative to the existence of immoral relations between these two defendants. It neither provided ñor tended to prove any issue involved in the case, and the attempt to prove this by the defendants themselves was not only a violation of the rules of law and practice, but a clear violation off the constitutional rights of these defendants. 'If they Avere persons of bad character, plaintiff coiild prove this for the purpose of impeaching them, but it conclusively appears that the evidence was offered for no such purpose. The only effect of the evidence at the time and in the manner it Avas offered would be to prejudice tiie jury against the rights of these parties. The court upon the request of the defendant Lord should have given the general affirmative charge in his case.
. Justices Anderson and Denson do not concur in the opinion that the general affirmative charge should have been given, but do agree to the reversal on account of the admission of some of the evidence allowed over defendants’ objections and exceptions.
For the errors pointed out, the case must be reversed and remanded.
Reversed and remanded.