Richardson v. Stinson

100 So. 209 | Ala. | 1924

Lead Opinion

This record presents three cases which involve the same law and facts between the same parties and were consolidated and tried as one case; two of the suits having started in the justice of the peace court and appealed to the circuit court. It is insisted that the defendant's requested charges 1 and 2, the general charge, should have been given, for the reason that the complaint in the third case, that is, the one originally filed in the circuit court, does not state a cause of action. While this count may be subject to demurrer, but which was not interposed, we do not think it fails to state a cause of action whether it be deemed in case or assumpsit. It charges that plaintiff had a lien on the cotton; that defendant, with knowledge of said lien, received and disposed of said cotton, and has failed and refused, after demand, to account to the plaintiff for the proceeds of said sale. Moreover, if this complaint did not state a cause of action, the defendant was not entitled to the general charge as to the counts in the other cases, which became a part of the consolidated case, and which are unquestioned, and said charges instruct a finding against the plaintiff as to the entire case.

Nor do we think that the defendant was entitled to the general charge because the plaintiff failed to prove a demand and refusal as averred in the complaint. True, the plaintiff did not prove in exact words an express demand and refusal, but there was ample evidence from which the jury could have inferred a demand and refusal. The plaintiff testified as to seeing the defendant and claiming the cotton, and that the sale price was furnished him by said defendant, and the defendant's witness Pope testified that defendant told him after the first bale had been sold that plaintiff had claimed the cotton.

There was sufficient proof of the execution of the mortgage by Pope to render it prima facie admissible as evidence. The subscribing witness, Howell, testified that Pope could not write, and told him to sign for him, which he did, and Pope made his mark.

There was no error in sustaining the objection to the questions to the plaintiff on cross-examination as to his former practice or custom of slipping notes over a man to catch him or of what he told one Kilgore when he took a note from him like the one in question.

We cannot say that the trial court erred in refusing the motion for a new trial because the verdict was excessive. True, the verdict about equals the value of the cotton as stated to the plaintiff by the defendant, but the jury could have inferred that the rent, one-fourth, had been excluded by defendant. Moreover, the jury was not conclusively bound by the statement of the defendant as to the value of the cotton, as they must have had some common knowledge of what cotton was worth, at the time the defendant received same, just a few months before the trial.

The judgment of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and MILLER, JJ., concur.





Addendum

On Rehearing.
It is urged that the court did not consider or treat the seventh assignment of error, and which is as follows: "The court erred in failing to render a judgment in favor of defendant Farmers' Merchants' Bank." The judgment entry shows *256 that the complaint was amended by striking out the bank as party defendant, and this left only the appellant as party defendant, and the judgment rendered was against him alone and not the bank, and was in effect a judgment in favor of the bank. Handly Reeves Co. v. Lawley Co., 90 Ala. 527,8 So. 101. True, the trial court should have rendered judgment for the bank for cost incurred by it, but this omission is not assigned as error, and should have been brought to the attention of the trial court at the time of the amendment, the rendition of the judgment or by motion to retax, and not for the first time in this court by brief and without an assignment of error. True, this court would no doubt have the power to correct if it had the proper data (Long v. Gwin, 188 Ala. 196,66 So. 88; Neff v. Edwards, 81 Ala. 246, 2 So. 88), but we do not feel called upon to do so upon the present condition of the record.

Rehearing denied.