138 Ala. 333 | Ala. | 1903
yThe Junger & Gass Company, a corporation, sold to the defendant two pianos, one a Ludwig and the other a Harrington, on the installment plan, retaining the title in the seller. Some time after the sale, the Junger & Gass Company, for a valuable consideration transferred and assigned the contract to the plaintiff Bamsey. Subsequently, the defendant having made default in payment, under the stipulations in the contract resenting title to the property and right to possession, in case of default in payment, the plaintiff brought this suit in detinue for the pianos. |
The defendant for answer to the complaint pleaded the general issue and five special pleas. No demurrer was interposed to either one of these pleas, and issue was taken on all of them.
In each and all of the special pleas the defendant set up illegality in the contract for the sale of the pianos, alleging in substance, that fthe pianos were sold to her by the Junger & Gass Company with knowledge that they were to be used by the defendant in fitting up and furnishing a house kept by her for purposes of prostitution./ Each of said special pleas contained the further allegation, in substance, either that the claims of Junger
It is a well settled rule that when a plea avers facts as defensive matter upon which issue is taken, in order to sustain the plea, it is necessary to prove the facts averred. Under the averments in the special pleas, the defendant avus required to sIioav more than the fact, that the pianos Avere sold by the Junger & Gass Company, Avith a knoAvledge on the part of said company, that they were to be put to an unlaAvful use. These special pleas in their allegations, Avent further than this, and averred either that the claims to the pianos Avere assigned to the plaintiff AAdth knowledge on plaintiff’s part that the properly was sold to the defendant for the purpose of enabling her to furnish a bawdy-house, or that the property was sold to the defendant with a knowledge on the part of the plaintiff at the time of the sale, that they were to be used for an immoral purpose. The first of the averments, Avhicli Ave have above set out in the alternatiAre, iirvohves an allegation of the intent Avith AAdiich the Junger & Gass Company sold the property to the defendant, and a knowledge on the part of .plaintiff of such intent, and the second involves an allegation, that the plaintiff knew at the date of the sale of the pianos
Our conclusion is, that the court erred in refusing the general charge as requested by the plaintiff; the only defense being that set up under the special pleas.
There are two other assignments of error relating to the ruling of the court on the admission of evidence. The witness Overby was asked the question: “Didn’t you say that was a sporting house?” The answer of the witness was: “It had the reputation of being one.” The plaintiff moved to exclude this answer as not being responsive to the question, and for the further reason, that the character of the house could not be proven by reputation. The answer was clearly not responsive to the question. As to the other ground of objection, it was said in Abel v. State, 90 Ala. 633: “The rule is that hearsay evidence (such as the evidence of reputation) is .in admissible, to establish any special fact capable of direct proof by witnessses, speaking from their own knowledge.” in Wooster v. State, 55 Ala. 221, the ad
There is nothing in the other exceptions reserved to the ruling of the court on the evidence, and which is assigned as error. The question asked was upon cross-examination of the witness, and was within the latitude allowed upon a cross-examination in testing the recollection or sincerity of the witness.
For the errors indicated, the judgment must be reversed and the cause remanded.
Keversed and remanded.