Bomar v. Rosser , 123 Ala. 641 ( 1898 )

McCLELLAN, C. J.

The record of the trial court as presented in the transcript before us contains and embraces only the summons, the complaint counting on three seAmral bonds for the payment of money executed by Bomar, the defendant, to Rosser, the plaintiff, and the judgment entry in favor of plaintiff for one hundred and thirty-two and 06-100 dollars. It does not appear by the record that defendant interposed any plea Avhatever. It does, however, appear by the bill of exceptions that the defendant interposed a plea numbered 1, the nature of which is not disclosed but Avhich may be assumed to have been the general issue, and also pleas of set-off, numbered 2 and 3, and the averments of these pleas appear in like manner. Plea 2 thus shoAvn set up that plaintiff owed the sum of $44.64 by account for “goods, wares and medical services furnished by defendant to plaintiff, and for use of medical books, medical tuition and for house and garden rent.” The third plea counts in set-off upon a note for one hundred dollars executed by the plaintiff to one Harlan, and by the latter transferred to the defendant. To this plea there were the following replications which were by consent stated orally in open court: “1st. That the note was without consideration. 2d. That the consideration of the note had failed. 3d. That the defendant procured said note from plaintiff by false and fraudulent representations. 4th. That said note was given for an interest in a patent right, and said defendant procured said plaintiff to give said note on the false and fraudulent representation that Bob Smith had purchased an interest in said patent right, or would do so. 5th. Said note was given for an interest in a patent right, and defendant procured plaintiff to give said note on the 'false and fraudulent representation that George Morrison and Joe Cothran had- each agreed to take a share in said patent right.” It further appears by the bill of exceptions that plaintiff took issue on the second plea, and that defendant took issue upon said replications to the third plea, and that the trial was had upon these issues. That these were the issues submitted to the jury appears also from the course of the trial, the evidence adduced upon either hand without objection and the requests by the parties respectively for instructions to the jury.- Under these circumstances we will consider the case as if the record of the trial court properly showed formal pleadings resulting in the making of these issues, though we would, perhaps; be justified in considering the case as upon the complaint and general issue.—Kansas City, Memphis & Birmingham Railroad Co. v. Crocker, 95 Ala. 412, 430; Richmond & Danville Railroad Co. v. Farmer 97 Ala. 141; Louisville & Nashville Railroad Co. v. Mothershed, 97 Ala. 261; Kansas City, Memphis & Birmingham Railroad Co. v. Burton, 97 Ala. 240.

We do not pass upon the question whether any of the issues which the parties thiis made were false and immaterial issues. Though some of them may be inherently false and immaterial, the parties for the purposes of the trial below and-of this appeal have made them true and material issues by presenting them and trying'the case upon them. Nor is there any warrant for our.taking-only some of the issues shown by the bill of exceptions to have been made by pleadings filed, and rejecting others shown by the same means to have been made in the same way.

One of the issues Avas Avhether defendant represented to plaintiff that Bob Smith had purchased an interest in the patent right referred to in the replications to the third plea; but there Avas no issue in the case as to Avhether the defendant had told Joe Cothran that Bob Smith had taken a share in the patent, and the fact that he had so told Cothran involved no legitimate tendency to prove that he had made a like statement to the plaintiff. The testimony of Cothran on this' matter should, therefore, have been excluded.

The first charge given for the plaintiff asserts that if there Avas no consideration for the one hundred dollar note, or, in other Avords, that if the patent right for Avhich the note^vas given Avas worthless, the defendant could not set it off against plaintiff’s demand. This Avas only to say that if the replication of Avant of consideration had been proved defendant could not recover on his plea of set-off; and there can be no doubt of the correctness of that proposition. .If defendant desired to rely upon purchase of the note for value Avithout notice, etc., he should have rejoined to this replication instead of taking issue upon it.

And so with respect to the second charge given for plaintiff: It hypothesized the facts set up in the 4th replication, and instructed the jury to find for plaintiff as to the matter involved in the third plea if they believed the facts averred in said replication. Whether the patent was valuable or worthless was not averred in this replication, and the plaintiff Avas entitled to recover on the facts Avhich Avere averred in it, if proved, wholly regardless of the consideration that the property for which plaintiff gave his note to Harlan Avas valuable or of no value.

The evidence on the part of the plaintiff tended to support the averments of his replication to plea 3, and hence, of course, defendant was not entitled to the affirmative charge on that plea.

Charges 2 and 3 refused to the defendant are in some degree argumentative. They each tend to mislead the jury to the conclusion that the one hundred dollar note should be set-off against plaintiff’s demand notwithstanding the defenses made against that note by the replications had been proved. Charge 2 assumes that there were mutual debts subsisting between the parties, when this was a question for the jury. Each of these charges was properly refused.

For the error committed by the trial court with reference to the testimony of Cothran, pointed out above, the judgment must be reversed. The cause is remanded.

Reversed and remanded.