Robinson's Admr's v. Allison, 36 Ala. 525

Robinson's Admr's v. Allison

36 Ala. 525 | Ala. | 1860

R. "W. "WALKER, J.

1. In response to the defendant’s demand for “ the list of items composing the account,” which answers to the common-law bill of particulars, (Pryor v. Johnson, 32 Ala. 27,) the plaintiff furnished an account, containing an item for “work done on granary, $135.” The proof was, that the granary on which the plaintiff had worked had a shed on each side, in one of *530which was a threshing-machine, “the machinery consisting of a shaft and cog-wheels to move it, which was made fast to the building, like the running-gear of a gin,” and which were put up by the plaintiff at the same time with the granary. The defendant objected to evidence that the plaintiff put up “said machinery,” (meaning, as we suppose, the stationary machinery, the shaft and wheel, by which the threshing-machine was impelled,) and of the value of the work, upon the ground that a charge for the same was not embraced in the list of items.

It would seem from the evidence, that the wheel and shaft were fixtures, and, therefore, part of [this particular granary, (McDaniel v. Moody, 3 St. 314; Hancock v. Jordan, 7 Ala. 450;) and according to the liberal rules which govern in the construction of bills of particulars, the admission of the evidence was not an error for which we should reverse the judgment. In respect to variance, bills of particulars are regarded with a spirit very favorable to letting in every claim under them which can be covered by any possible construction of their language. 3 Phill. Ev. (C. & H. notes,) 3d ed. p. 637 ; Smith v. Hicks, 5 Wend. 48; Benson v. Brown, 10 Wend. 248. It has been said, that the test of the sufficiency of a bill of particulars is, “ whether it is calculated to mislead a party who knows something about the matter;” and if not so calculated, it shall be deemed sufficient, unless upon affidavit, or other satisfactory evidence, that it has opera-' ted a surprise upon the adverse party. — Harris v. Montgomery, 5 Eng. L. & Eq. 442; Tillon v. Hutchinson, 3 Green’s Law, 178. Supposing a party to know something of the'circumstances under which the machinery in question was erected, and of its connection with the room used as a granary, it is far from clear that he would be surprised by the evidence which was objected to. There was no special showing that the evidence was a surprise to the defendants; and in the absence of affidavits, or other evidence to that effect, we are not prepared to say that the court erred in admitting it. — See, further, Power v. Butcher, 10 Barn. & Cress. 329.

2. If the evidence of £he witness O’Neal became rol*531evant for any purpose, at any stage of the cause, its admission is not an error for which we would reverse, although at the time when, and for the purpose for which it was offered, it may have been irrelevant. — King v. Pope, 28 Ala. 601; Goldsmith v. Picard, 27 Ala. 151; Johnson v. State, 29 Ala. 68. The bill of exceptions shows, that there was evidence on the part of the defendants, tending to prove payments by the intestate to the plaintiff; but there was no evidence that the intestate had directed the application of the payments to any particular debts, or that the plaintiff had made any application of them. Under these circumstances, the duty,of determinining how the payments should be applied, devolved upon the. court. It was, therefore, competent for the plaiutiff to prove, that there were other debts to which these general payments might be applied, either by himself or by the court, besides those sued for and embraced [in the bill of particulars. — Brown v. Denison, 2 Wend. 593; Ross v. Pearson, 21 Ala. 476. The evidence of the witness did tend to establish such a debt; and as it was admissible for the purpose we have indicated, its admission for another and an improper purpose is not a reversible error. The defendants could have limited its effect, by asking the necessary instructions. Goldsmith v. Picard, 27 Ala. 151; Cook & Scott v. Parham, 24 Ala. 21.

3. Where neither party has applied the payment, but it is left to be appropriated by law, the general principle adopted by the American courts is, to apply it according to the intrinsic justice and equity of the case. — Cremer v. Higgerson, 1 Mason, 338; Callahan v. Bozeman, 21 Ala. 449 ; United Stats v. Wardwell, 5 Mason, 85; Seymour v. Van Slyck, 8 Wend. 403 ; Smith v. Lloyd, 11 Leigh, 517; Stamford Bk. v. Benedict, 15 Conn. 442 ; 2 Greenl. Ev. §§ 529, 533. It is upon this principle that the courts apply a payment to the debt which is most precarious. Field v. Holland, 6 Cranch, 8; Moss v. Adams, 4 Ired. Eq. 42 ; Blanton v. Rice, 5 Monroe, 253 ; 2 Greenl. Ev. § 533; 1 Am. Lead. Cases, 295. Where, at the time the payment is made, the debtor owes the creditor two da*532mands, both then due; and afterwards, but before the appropriation is made by the court, one of these, demands is barred by the statute of limitation, or of non-claim, justice between the parties would seem to inquire, that the payment should be applied to the debt thus barred. See Hamner v. Rochester, 2 J. J. Marsh. 144. Indeed, the failure of the debtor to present one of his demands, as required by the statute of non-claim, when coupled with his presentation of, and commencement of'suit upon the other, might, perhaps, justify a court in presuming an application, of the payment by the creditor to the debt not presented. It is clear from what we have said, that there was no error in the charges given, of which the defendants can complain.

4. The practice of permitting the jury to take out with them memoranda prepared and used by counsel on. the trial, is one which, we think, should not be encouraged by the circuit court. But the paper which was suffered to go to the jury in this case appears to have been a simple memorandum, referring to the various items of debit and credit contained in the accounts before the jury, and the court specially charged the jury, that the memorandum was,not to be regarded by them as evidence, and that they could not look to it for auy purpose, except to aid them in referring to the various items in the differ-’ ent accounts before them. We do not see how the use •of the memorandum by the jury, under these restrictions, could have injured the defendants; and we will not reverse for such'a cause.

Judgment affirmed.

Stone, J., dissents on the 8d point.