Scott & Sons v. Rawls & Rawls, 48 So. 710

48 So. 710 | Ala. | 1909

DOWDELL, J.

The complaint is on a promissory note. The defendant filed eight pleas. Demurrers were interposed to pleas numbered 3 ,5, la, and 3a, which were overruled by the court. These rulings are here separately assigned as error.

Plea la is neither in form nor substance the general issue. It merely states as a conclusion of the pleader that the defendant does not owe the demand sued on, without the statement of any facts. Under this plea, if the plaintiff should be forced to join issue on it, the defendant might offer evidence of matter in support of the same, as that of failure of consideration, or payment, which should be specially pleaded, and to which the plaintiff would be entitled to specially reply. The plea fails to inform the plaintiff of what he is to meet, and is therefore bad, and subject to demurrer. Plea numbered 1, to which a demurrer was overruled is subject to like criticism; but this ruling is n.ot assigned as error.

Plea No. 3 as a plea of payment has its infirmities, but is not open to any of the grounds of demurrer assigned. It fails to aver that the payment was made before suit commenced.

Plea 3a, when construed, as the rule requires, most strongly against the pleader, is subject to the demurrer interposed. This plea by its averments sets up as a defense a parol agreement on the part of the creditor to .accept, and the payment by the debtor of, a less sum than the real debt, concerning which there was no dispute, and which the plea admits . The rnle is well settled in this state that such an agreement is nudum pactum. — Singleton v. Thomas, 73 Ala. 205; Hodges v. Tenn. Implement Co., 123 Ala. 572, 26 South. 490; Hand Lurmber Co. v. Hall, 147 Ala. 561, 41 South. 78, The plea on its face confesses that the receipt set out in the plea does not speak the truth. While the receipt recites the payment of $2,250, the plea admits in fact only $1,750 was paid, There was no dispute or controversy about the indebtedness of $2,250. The note sued on, it is admitted, represented in part this debt; that is, to the extent of $500. The note was not surrendered upon the giving of the receipt, though it is averred in the plea that there was an agreement to surrender it, which, however, was a mere verbal agreement. Under these facts we are unable to- discover anything more than a simple verbal agrément to accept a less sum than the amount of the debt in payment of the same, which was without any consideration to support it, and consequently nudum pactum.

The assignment of error in reference to the ruling on the demurrer to plea No. 5 is not insisted on, and hence we do not consider it.

There are other assignments of error, but what we have said above as to the rulings on the pleadings sufficiently indicates the errors committed, and will prove a sufficient guide on another trial.

For the errors indicated, the judgment- is reversed, and tile cause is remanded.

Reversed and remanded.

Tyson, C. J., and Anderson and McClellan. JJ., concur.