97 So. 62 | Ala. | 1923
The suit is upon a promissory note executed by the Valley View Farm and W. E. Lester. The defendants are "W. E. Lester and B. H. Lester, individually, and Valley View Farm, a partnership composed of W. E. Lester and B. H. Lester." Defendants respectively pleaded the general issue and "in short by consent with leave to give in evidence any matter or thing which would be material if specially pleaded." Defendant B. H. Lester further answered, saying that "the note upon which this suit is founded was not executed by her or by any one authorized to bind her in the premises," and makes oath that this plea is true. The last plea and the rejoinders to plaintiff's replication were embraced in, or may be given under, the agreement for pleading "in short by consent." Allen v. Standard Ins. Co.,
The trial resulted in verdict and judgment against Valley View Farm and W. E. Lester; there was judgment for defendant Mrs. B. H. Lester, and it is from this judgment in favor of Mrs. Lester that the appeal is prosecuted. There was a motion for a new trial which was denied, and exception was duly reserved by the plaintiff.
The refusal of the general affirmative charge as to Mrs. B. H. Lester is justified by the conflict in evidence and the reasonable inference to be drawn therefrom. McMillan v. Aiken,
Assignments of error 1 and 2 relate to the introduction in evidence, over the objection of plaintiff, of letters written by the branch manager of plaintiff to Judge W. E. Lester, after the due date of the note. The note was of date February 12, 1921, for $6,000, due December 1st of the same year. After the latter date, A. B. Staten, the manager of the payee's branch taking and holding the note for collection or extension, wrote that he was "inclosing * * * herewith a new note of $6,000 for a period of 60 days," requested that it be signed "as Valley View Farm," and that Mrs. Lester sign next "with your name following." The plaintiff moved to exclude the letter on the grounds that it was not binding on the plaintiff, was subsequent to the maturity of the note sued on, and could not affect the status that existed at the time of the execution of the note. This motion was overruled and exception reserved. The letter stated that it was written "at the suggestion of Mr. White," who is shown to have been the cashier of the Tennessee Valley Bank at Decatur, which governs all the branches of said bank, including that of which the writer, Staten, was the manager. The same objection, exception, and motion to exclude were made and reserved to the introduction in evidence of a letter of date February 27th to Judge Lester, asking that the note be signed as outlined in the letter of the 20th and returned promptly. In argument it is insisted that the letters were not pertinent or competent as evidence on the issue of the indebtedness vel non of Mrs. Lester, and shed no light on the status "at the time of the execution of the note," citing Humes v. O'Bryan,
The Humes Case, supra, was an action on account for goods sold and delivered, and it was held that the declarations of one person as to the existence of a partnership between himself and another person are not admissible evidence against the latter to prove the fact of partnership unless they are made in his presence, or fall within some recognized exception to the general rule excluding hearsay evidence; that the declarations of one partner, while in possession and carrying on the business, explanatory of possession, whether against interest or not, are within the rule, and admissible in corroboration of other and independent evidence of the alleged partnership; and that it was under the foregoing principles that the letter signed by Glover of later date was admissible. In the Womack Case, supra, it was held error to permit as testimony what one of the trainmen said after the accident, "We have run over a man and killed him," etc. In the case of Fowler v. Pritchard, supra, several assignments of error were based on admission of testimony, and it was said that there was no error in the overruling of plaintiff's "objection to the question to witness Cornelius Fowler as to what the circumstances were under which the deed was made."
Such was the purpose of the introduction of the letters written by the branch manager at the insistence of Mr. White, the cashier having charge of said branch of plaintiff's bank, and engaged in the effort, for the bank, of collecting or renewing the note. The other evidence shows that, at the time the first note was signed by the Valley View Farm and W. E. Lester, the latter had a one-half interest in a large acreage of land which he transferred to his wife, Mrs. B. H. Lester. The letters were in nature a correspondence or conversation between the principal officers of the bank having charge of such matters and one of the defendants, about the issue for submission to the jury. Such statements made by the bank in the endeavor, *125 through its duly and regularly constituted officer, to get additional security in the execution of the new note, were competent. The corporation made such statements or admissions against interest through its duly constituted authority, while in the exercise of duty to and for the corporation in and about the matter under consideration — while so acting for the bank the letters were written.
There was no error in permitting W. E. Lester to state, over objection of the plaintiff, that he did not pay his wife anything for a deed to the one-half interest in the Harrison lands. It would have come within a recognized exception to the general rule of parol testimony varying a written instrument had this been a suit between the parties to the instrument. Such is not the case. Corley v. Vizard,
The witness W. E. Lester was permitted, over the objection of the plaintiff, to testify that the Hodges deed conveyed an interest in the lands to him "by mistake." This was not a conclusion of the witness, but the statement of a fact. However, this transaction is not directly challenged in this suit, and the deed was in evidence rebutting his statement or explanation, and there was evidence that his wife had placed the same on record, and it was mortgaged by the party. This was merely an explanation or statement of a collateral matter without the issue being tried, and we find no reversible error in the ruling.
The first verdict did not respond to the issues which the jury was required to determine and return. It was proper and necessary for the court to instruct them that they were required to consider further and return a verdict pursuant to the issues presented. The first verdict had made no disposition of the question of liability vel non of defendant Mrs. B. H. Lester, and though the verdict was in form for the plaintiff against the "Valley View Farm and W. E. Lester for $6,000, with interest from maturity and attorney's fee of $100," it should have further responded to the issue of plaintiff's claim against Mrs. Lester. The declining of the court to receive the verdict and instruction that the jury return and determine the issue as to such "liability vel non of defendant B. H. Lester" were within the proper discharge of duty by the court. The foregoing and several questions presented by the motion for a new trial and presented for review by assignments of error fail to disclose reversible error. Refused charges 1 and 2, conceding that the same should have been given (Eggleston v. Wilson,
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.
