87 So. 876 | Ala. | 1921
This is the second application for the writ of certiorari in this cause. The opinion of this court on the first application is reported in
First as to the rulings on the demurrer to the several special counts of the complaint: Whether the doctrine of error without injury, as demonstrated in Espalla v. Wilson,
In the Court of Appeals it was held that —
"The ground of demurrer, taking the point that these special counts did not aver that the acceptance [on which one of these counts declares] is in writing, as well as some of the other grounds, were well taken, and should have been sustained."
The argument indulged by the court shows its opinion to be that the counts, in the absence of an allegation that defendant's acceptance was supported by a valuable consideration, should have alleged that the acceptance was in writing. But this court held on the former application that there may be a binding parol acceptance of an order for the payment of money, and called attention to the fact that the demurrer contained no objection that the consideration for defendant's obligation was not averred, and therefore ruled that no question of that kind had been raised for decision. This was tantamount to a decision that the ruling on this point by the trial court was free from error, and disposes of all questions as to count 7 of the complaint, for the sole objection taken to that count was that —
"Said count does not show that defendant's acceptance was in writing."
We are not informed what other grounds of demurrer the Court of Appeals thought should have been sustained. We may presume, however, that the court considered only such grounds of demurrer as were argued in appellant's brief. Against count 8 it was urged that the count was bad for the reason that a mere verbal promise to accept a bill, not yet drawn, will not in law amount to an acceptance. But on the former application for review it was ruled that the count was not demurrable on that ground.
Count 9 proceeded upon the theory that the order alleged therein constituted an assignment to plaintiff of the amount therein described, and was at the time of the assignment due from defendant to Ross, plaintiff's assignor. The objection urged was that the order was drawn on the general credit of Ross, and not against any particular fund, and so, that it amounted to an equitable assignment, if anything, not enforceable in an action at law. The language of the counts refutes the demurrer.
As appears from the judgment rendered in the trial court, issue was not joined on count 6, a special count, and it may therefore be said that no harm was done by the ruling on demurrer, even if erroneous; but our judgment is that the count, like count 9, should be sustained as a count upon an assignment of the fund in the hands of defendant.
It follows that there was no error in the trial court's rulings on the demurrer to the special counts of the complaint.
On the former application this court held that the trial court could not be put in error for sustaining the plaintiff's objection to the admission of the complaint in another action plaintiff had brought against the defendant, not personally as here, but in her capacity as executrix of the last will and testament of W. H. Simpson, deceased, such complaint having been offered to discredit the testimony of plaintiff's president, who testified as a witness for plaintiff on the trial of this cause. That decision was the law of this cause for the Court of Appeals, which court, under the statute of its creation, had no choice but to follow the opinion and mandate of this court, and we have no purpose to reopen the argument as to the question of evidence then under consideration. However, the Court of Appeals appears to have entertained the opinion that this court, on the point of this evidence, had, in Richardson v. State,
Reversed and remanded, with direction that the cause be disposed of in the Court of Appeals in agreement with this opinion.
All the Justices concur.
