Morningstar v. Querens

142 Ala. 186 | Ala. | 1904

TYSON, J.-

This is an action brought to recover certain installments' of rent due by defendant to plaintiff upon a written lease, executed by them both.

The only plea interposed was the general issue. On the trial the general affirmative charge was given at the written request of plaintiff!.

It is first insisted that plaintiff failed to prove that averment of the complaint which is in these words; “being the building which was on the date of the demise of said property occupied by R. Seal as a grocery store.” The lease introduced in evidence describes the property as “being the building which is now occupied in part by R. Seal as a grocery and Johnson Bros., as a saloon.” We do not think the contention meritorious. The recitals of the lease above quoted, which was in evidence, certainly fills the allegation of the complaint, it not being averred that Seal was the exclusive occupant of the building. The averment was simply to designate the property in which the rooms leased were located, which the evidence undisputably shows defendant took possession of and paid installments of rent under the lease.

It is next insisted that because the evidence shows that plaintiff was a married woman, residing in the State of Louisiana, at the date of the execution of the lease and also when this suit was brought, that she should not have been allowed to recover. This contention is predicated upon the proposition that her husband was a necessary party plaintiff. If the soundness of this proposition be conceded, the plaintiff’s right to maintain the action was not challeged by the plea of the general issue, which under the statute, (§ 3295 of the .Code) puts in issue only the truth of the allegations of the complaint. If it was desired, to raise the question of non-joinder of the husband as a party plaintiff, this could only have been done by a plea in abatement. — Berlin v. Sheffield Coal, Iron & Steel Company, 124 Ala. 322.

The remaining assignments of error are based upon the rulings of the court in sustaining objections to certain questions propounded by defendant, the purpose of which were to elicit testimony to show that a breach was made by plaintiff of an oral agreement to make additions to the leased building. If the agreement was made prior to or contemporaneously with the execution of the lease, the evidence was clearly not competent upon the principle declared in Thompson Foundry & Machine Company v. Glass, 136 Ala. 648. If made after the execution of the lease, conceding .the authority of the agent to bind her, no consideration is shown for it. However, tbe evidence was not ...competent under tbe plea , in this case. If defendant, wished to interpose this defense, be should have interposed a plea of recoupment or set-off. This disposes of all the assignments of error insisted on. ■ ■ .

Affirmed.

McClellan, C. J., Simpson and Anderson J. J., concurring.