194 So. 182 | Ala. | 1940
General assumpsit on account for merchandise, goods and chattels sold. Some of the counts declare on an account arising out of dealings directly between the plaintiff and the defendant, while the other counts declare on an account arising out of dealings between a third party, Red Cap Battery Company, and the defendant. The counts in the latter class follow, substantially, Form 11, prescribed by § 9531 of the Code 1923, for suits "by transferee," said counts concluding with the averment that the money claimed "is the property of the plaintiff."
The pleas were the general issue, payment and recoupment.
The appellant's contention on this appeal relates to the sufficiency of the evidence, and its competency going to show that the plaintiff acquired the account of the Red Cap Battery Company, through a bankruptcy proceeding in the Federal Court, adjudging the said Red Cap Battery Company a bankrupt, and a sale of its assets under the order of the court. The only testimony offered by the plaintiff being the parol testimony of the witness, Dan Sabel, given ore tenus. The substance of the witness's testimony is embodied in an answer to a question put to him by plaintiff's counsel, to wit:
" 'The Red Cap Battery Company was sold in bankruptcy the latter part of 1935, and I operated at that time about two or three months as an individual, carrying that Nunn account as an individual, which I had purchased from the court sale, and, in turn, sold it to the new company, when it was organized in February of 1936.
"Q. 'From that time on, did that account continue in the name of The Battery Manufacturing Company?' A. 'Yes.'
"Q. 'And was owned by the Battery Manufacturing Company?' A. 'Yes.' "
There was no objection to this testimony, but the defendant after exercising the right of cross-examination in response to which the witness reiterated his testimony, moved to exclude the testimony.
Aside from the fact that the defendant's motion was ill timed — came too late — Reese v. Mackentepe,
Section 9470 of the Code 1923 limits the scope of the general issue to the existence of the account declared on — its substance — and not the right of the plaintiff to sue as transferee thereof.
In Louisville Nashville Railroad Co. v. Trammell,
This scope of the plea was applied in an action on account by an administrator in Espalla v. Richard Sons,
In Alabama Gold Life Insurance Co. v. Mobile Mutual Insurance Co.,
In Northern Alabama Ry. Co. v. Feldman,
In the instant case the plaintiff had the burden of showing that the defendant owed the debt, and the defendant had the right, under the general issue, to contest every item, but in the absence of special plea denying the plaintiff's ownership as transferee, the capacity in which he sued on the Nunn Battery account, that was not a vital issue in the case.
The rulings of the circuit court appear to be free from error.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.