Barber v. Martin

Citation240 Ala. 656,200 So. 787
Decision Date06 March 1941
Docket Number6 Div. 823.
PartiesBARBER v. MARTIN.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action of assumpsit by P. D. Martin against Amzi G. Barber. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

Refusal of requested charges was not error where charges were either bad in form or invasive of jury's province.

Defendant demanded a bill of particulars, and plaintiff filed paper setting forth as the basis of his claim the stated account appearing in the opinion. Thereafter plaintiff filed an amendment reciting that "The account sued on in plaintiff's complaint is composed of the following items," setting out three items as having been collected by defendant while acting as attorney for plaintiff, with deduction of attorney's fees for collection and other credits, and showing a balance of the amount sued for.

Plea 5 alleges that prior to the institution of this suit there was an accord between the parties by the terms of which plaintiff agreed to accept in extinction of the obligation sued upon a settlement of claims between himself and another--Arlie Barber--owing to said other and which said claims were assigned to defendant before this suit was commenced and are defendant's property, and to pay to Arlie Barber or his assigns any overplus or balance then and there due, which said overplus or balance is due and owing in the sum of $1,133.58, and which defendant offers to set off against plaintiff's demand and claims judgment for the excess.

By plea 6 it is alleged that in January, 1934, defendant was engaged in the practice of law, with a large, lucrative and growing practice, was generally recognized as a faithful and honorable practitioner, and at said time plaintiff wrongfully, maliciously and without probable cause instituted proceedings before the grievance committee of the Birmingham Bar Association, charging defendant with having collected certain moneys while acting as attorney for plaintiff which he failed and refused to remit to plaintiff, having admitted owing the same, and which said charges were judicially investigated and defendant discharged therefrom; that defendant, as a proximate consequence of said act of plaintiff, was humiliated and embarrassed, held up to scorn of his fellow attorneys and the public generally, suffered mental distress and physical inconvenience, suffered in good name and professional standing and his professional income was greatly decreased--for all of which defendant claims punitive damages, which he offers to set off by way of recoupment and claims judgment in recoupment for the excess. It is alleged that the matters and things shown by this plea are related to and connected with and grew out of the things and matters alleged in plaintiff's count A.

Plea 7 alleges that at the time this action was commenced plaintiff was indebted to defendant in the sum of $1,655.45 for breach of an accord between plaintiff and defendant, in that, in consideration of the mutual understanding and agreement between plaintiff, defendant and Arlie Barber that defendant and Arlie Barber would render to plaintiff such legal services as he requested, that Arlie Barber (who was also engaged in the real estate and insurance business) would supply to plaintiff such policies of insurance to protect his property as plaintiff requested, and in return defendant and Arlie Barber would employ plaintiff to do and perform such work of installing and repairing plumbing on real estate belonging to or controlled by them: it was mutually understood and agreed by and between plaintiff, Arlie Barber and defendant that at such time after the performing and rendering of said services to, by and between said three parties, a settlement was to be had and a balance struck that on September 19, 1933, plaintiff was indebted to defendant in the sum of $438.25 and the combined accounts of Arlie Barber were transferred and assigned to defendant before institution of this action, the aggregate amount against plaintiff being $1,655.45; that on said date plaintiff breached said contract of accord and refused to set off said accounts against each other as mutually agreed. Defendant offers to set off against the demand of plaintiff said sum of $1,655.45 and claims judgment for the excess.

Plea 10 alleges that the execution of the writing set forth in plaintiff's bill of particulars was procured through the fraud of plaintiff; that on September 19, 1933, plaintiff was indebted to defendant and defendant was indebted to plaintiff in a greater sum; that Arlie Barber, father of defendant, was indebted to plaintiff and plaintiff was indebted to Arlie Barber; that on said date it was mutually agreed between said three parties that they would make a joint adjustment of their claims against each other, in furtherance of which plaintiff then and there proceeded to adjust the claims between himself and defendant and, a balance having been arrived at, plaintiff demanded of defendant a written statement which defendant then and there executed; that plaintiff breached his said agreement in that upon execution of said statement of balance between himself and defendant plaintiff refused to go further with said contract and refused or failed to allow Arlie Barber to set off his net account owing him by plaintiff, which said net excess of said Arlie Barber's account against plaintiff exceeds the net claim of plaintiff against defendant in the sum of $1,408.20, which net claim was, on September 19, 1933, assigned by Arlie Barber to defendant, and defendant offers to set off said claim against the plaintiff's demand and asks judgment of recoupment for the excess.

Barber & Barber, of Birmingham, for appellant.

Aird & Fox and W. T. Edwards, all of Birmingham, for appellee.

BROWN Justice.

This is an action of assumpsit by the appellee against appellant. The original complaint consists of four counts, but all counts, except the third count declaring on account stated, were withdrawn. Said count three is in the following words: "Plaintiff further claims of the defendant the sum of Two Hundred Forty seven & 25/100 Dollars on account stated between the plaintiff and the defendant on the 19th day of Sept., 1933, which sum of money with interest thereon is due and unpaid." [ Italics supplied.]

The plaintiff amended by adding Count A written on "yellow paper" in words as follows: "The plaintiff claims of the defendant two hundred forty seven and 25/100 ($247.25) due from the defendant on account stated on, to-wit, the 19th day of September, 1933, which sum of money, together with the interest thereon is still due and unpaid."

The defendant demurred to the complaint and each count thereof on the grounds:

"1. For that said complaint does not state a good cause of action.
"2. For that the complaint shows that there is a misjoinder of causes of action."

The demurrer was...

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24 cases
  • Allison v. Owens
    • United States
    • Alabama Supreme Court
    • October 10, 1946
    ... ... the equity docket is not reviewable on appeal from a final ... judgment in the action. Barber v. Martin, 240 Ala ... 656, 200 So. 787; Esslinger v. Spragins, 236 Ala ... 508, 183 So. 401; Derzis v. Cox, 223 Ala. 517, 137 ... In ... ...
  • Car Center, Inc. v. Home Indem. Co., Inc.
    • United States
    • Alabama Supreme Court
    • January 22, 1988
    ...as to the correctness of the statement; and (3) the debtor admits liability. Ingalls v. Ingalls Iron Works Co., supra; Barber v. Martin, 240 Ala. 656, 200 So. 787 (1941). The debtor's admission to the correctness of the statement and to his liabiilty thereon can be express or implied. An ac......
  • In re Templeton
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • August 6, 2015
    ...as to the correctness of the statement; and (3) the debtor admits liability. Ingalls v. Ingalls Iron Works Co., supra ;Barber v. Martin, 240 Ala. 656, 200 So. 787 (1941). The debtor's admission to the correctness of the statement and to his liability thereon can be express or implied. An ac......
  • In re Hammon, Case No. 13-40433-JJR13
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • August 6, 2015
    ...as to the correctness of the statement; and (3) the debtor admits liability. Ingalls v. Ingalls Iron Works Co., supra; Barber v. Martin, 240 Ala. 656, 200 So. 787 (1941). The debtor's admission to the correctness of the statement and to his liability thereon can be express or implied. An ac......
  • Request a trial to view additional results

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