Baker v. Boon

• Decision Date: 27 July 1893
• Citation: 100 Ala. 622,13 So. 481
• Parties: BAKER v. BOON.
• Court: Alabama Supreme Court

13 So. 481

100 Ala. 622

BAKER v. BOON.

Supreme Court of Alabama

July 27, 1893

Appeal from circuit court, Tuscaloosa county; S. H. Sprott, Judge.

Action on a promissory note by C. C. Baker against W. P. Boon. Defendant had judgment, and plaintiff appeals. Affirmed.

On the trial of the case, as is shown by the bill of exceptions after the introduction of the note made by W. P. Boon to one J. Rich, and which had been assigned by J. Rich to the plaintiff, the plaintiff rested his cause. Thereupon the defendant, as a witness in his own behalf, testified that upon Jake Rich asking him to give him the note in settlement of the defendant's account with the said Rich, the defendant demanded a settlement in full; that the said Rich stated that he did not have his books; and that he told the defendant to give him the note, and that they could have a statement afterwards. The defendant testified that: "I gave him [Rich] the note with the understanding that I should pay whatever amount was due him after we had settlement, and no more. I owed him some amount, but I didn't know what amount." The plaintiff moved to exclude the testimony of the defendant as to the understanding between him and said Rich at the time of the execution of the said note, and duly excepted to the court's overruling his motion. The defendant's testimony further tended to show that he had since the execution of said note, tried repeatedly to get a settlement of his account with the said Rich, but had never been able to do so, and that since the making of said note he had ascertained that he owed said Rich only about $15 or $20. The defendant then introduced in evidence, against the objections and separate exceptions of the plaintiff, several statements of accounts which had been presented to him by said Rich, and also introduced receipts given him by said Rich in payment of these several accounts, showing a balance due of only $15 or $20. The defendant, on his cross-examination, denied that the plaintiff ever came to see him about the note before he purchased it, and that he told the plaintiff that he had no defense to the note. He further denied that he had ever promised to pay the plaintiff as soon as the present suit was brought, and denied that he had ever admitted the indebtedness due on the note, either to the said Rich or to the plaintiff. In rebuttal the plaintiff introduced testimony which was in direct conflict with the testimony of the defendant,-to the effect that the defendant on being seen by the plaintiff before he purchased the note from said Rich, admitted the indebtedness, and told the plaintiff that he had no defense to the said note, and would as soon pay him as said Rich; that he had on several different occasions admitted the indebtedness evidenced by the note, and had, since this suit was brought, promised to pay the same. Upon the introduction of all the evidence the plaintiff requested the court to give the following charges to the jury, and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges the jury that the defendant, having given the note in evidence, payable in money, cannot now be heard to testify that the said note, or a part thereof, was to be discharged by a statement of accounts then pending between the maker and the payer of the note." (2) "The court charges the jury that the note before them is payable in money, and that they must not consider any evidence, if there be any, tending to show a parol agreement between the defendant and said Rich that said note was to be discharged, in part or in full, by crediting the same with an amount to be ascertained on the statement of an account between them, in answer to the complaint." After judgment was rendered for the defendant the plaintiff moved the court for a new trial on the grounds-First, that the court erred in its charge given to the jury; second, because the verdict of the jury was not supported in evidence, and was contrary to the law as given by the court; third, because the plaintiff was taken by surprise on the trial of said cause; fourth, because the suit was on a promissory note, and that the defendant had never denied the justness and validity of the said note until the day of the trial; fifth, that after the trial was taken the...