136 Ala. 568 | Ala. | 1902
The question raised on the demurrer to the third plea as amended and to the sixth plea, was determined on the former appeal in this case. — 131 Ala. 642; 31 So. Rep. 559.
There was evidence tending to show that the debt on open account from the defendant to the plaintiff was not due at the time of the alleged payment of sixty dollars. If this was true, in the absence of an agreement to that effect, the plaintiffs had no right to apply this payment as a credit on the account, but were bound to apply it on the note which was then past due. — Bobe’s Heirs v. Stickney, 36 Ala. 482. The defendant testified that when he remitted the sixty dollars to the plaintiffs the note sued on was then past due, and the indebtedness from defendant to plaintiffs on open account was not due. He also testified that in making this remittance he gave plaintiffs no direction as to the application of the payment. This being true, the law directed the application of the payment to the past due indebtedness, and evidence, therefore, by the defendant that he did not consent for the plaintiffs to credit the said payment on the open account, which was not due, was immaterial. No error was committed by the court in sustaining the objection to this evidence.
There was a palpable conflict in the evidence as to a material question in issue, and the affirmative charge requested by the defendant was, therefore, properly refused.
Written charge No. 3 requested by the defendant was properly refused for the same reason that plea No. 3 was held insufficient upon former appeal. Mere knowledge on the part of the plaintiffs of the purpose of the
Written charge No. 8 was properly refused. There Avas no evidence “that Ple-xner solicited or received from the defendant the Avhiskey shoAvn to have been sold to defendant by the invoice,” etc. . The charge as copied in the transcript is not intelligible; something seems to have been omitted. But charges are to be given or refused by the court in the language requested. It is not the duty or province of the court to supnly the omission of words in charges asked.
Charge No. 9 requested bjr the defendant is faulty in the failure to hypothesize an intent on the part of the plaintiffs in connection with the acts' postulated in the charge as constituting a participation by the plaintiffs in subsequent, illegal sates of the liquor by the defendant. If the acts postulated Avere done by the plaintiffs without the purpose or intent to aid the defendant in his subsequent illegal sales, such acts in themselves and alone, - Avould not constitute a participation in such subsequent illegal sales. The charge for the reason given, if for no other, was properly refused.
There being no error- in the record, the judgment will be affirmed. ■