96 Ala. 412 | Ala. | 1892
Declarations of a party offered in his own interest, which are sought to be adduced as res gestea, must characterize a material act; they must tend to thro light upon or give color to something being done, the doing of which is a relevant fact in the case. The declaration offered here, to the effect that certain two bales of cotton was “prize cotton,” was clearly not of that class. — 1 Greenl. Ev., § 108 n. 1. a.
There was no controversy as to the validity of the mortgage, or a.s to the fact that it had not been paid in full, or as to the fact that it covered the property sued for, or as to the fact that the law-day thereof had passed before the institution of. this suit. The only questions raised on the trial bearing upon the amount still due on the debt secured by the mortgage have been considered and ruled adversely to the appellant. The only other issue in the cause was that presented by defendant’s fourth plea, as finally amended, namely, whether plaintiffs had, upon valuable consideration, extended the time of payment of the debt, and postponed the law-day of the mortgage to a time subsequent to the bringing of this suit. Conceding that some evidence was adduced tending to show that one Acker had agreed to such extension in a way and upon a consideration which would
Many charges were asked by the defendant and refused. They were addressed to the inquiry raised by the fourth plea — whether the action had been prematurely instituted. As plaintiffs were entitled to the general charge on this point, and it was properly given at their request, we need not consider the instructions asked by defendant. Whatever their merits or demerits, abstractly considered, no injury resulted to the appellant from their refusal. Stephens v. Regenstein, 89 Ala. 561; Moody v. Walker, 89 Ala. 619; Tuskaloosa Cotton Seed Oil Co. v. Perry, 85 Ala. 158; Pritchett v. Pollock, & Co., 82 Ala. 169.
The assignments of error which are directed against the failure of the court to assess and adjudge damages for the detention of the property by defendant before suit, and by plaintiffs after suit, are so patently without merit that we deem it unnecessary to discuss them.
The judgment of the Circuit Court is affirmed.
Affirmed.