Barrett v. Hanks

• Decision Date: 20 June 1963
• Docket Number: 7 Div. 573
• Citation: 155 So.2d 339,275 Ala. 383
• Parties: Sam S. BARRETT et al. v. J. P. HANKS, Jr.
• Court: Alabama Supreme Court

Page 339

155 So.2d 339

275 Ala. 383

Sam S. BARRETT et al. v. J. P. HANKS, Jr.

7 Div. 573.

Supreme Court of Alabama.

June 20, 1963.

Scott & Scott, Fort Payne, for appellants.

Beck & Beck, Fort Payne, for appellee.

LIVINGSTON, Chief Justice.

Appellant's statement of the case, as set out in their brief, is sufficiently accurate to present all pertinent questions, and we set it out as follows:

Suit was filed by the appellants on August 8, 1960, on general counts claiming $5,670 by two checks given by the defendant to the plaintiffs as down payment on a house and tract of land. The complaint also contained counts suing for the amount due under a 'bad check' and the statutory penalty provided by Act No. 567 of the 1959 Alabama Legislature. Demurrers were sustained, and the plaintiffs amended the complaint on March 8, 1961. The demurrers were reassigned, and on March 15, 1961, were overruled. On april 18, 1961, the defendant filed eight pleas which were demurred to by the plaintiffs, and the said demurrers were overruled. On April 18, 1961, the testimony was taken before the court without a jury and submitted to the court and taken under advisement. The said trial was held under the defendant's pleas of general issue and fraud and general replication and statute of frauds by the plaintiffs (appellants). The plaintiffs were given leave by the court to file additional common counts, and the defendant was given leave to file further pleas in the nature of estoppel. On May 8, 1961, the plaintiffs filed the additional counts to which the defendant reassigned demurrers which were overruled. Also, on May 8, 1961, the plaintiffs moved the court to have their testimony in the cause transcribed, which motion was granted and the testimony transcribed by the reporter. On May 17, 1961, the defendant filed additional pleas in the nature of accord and satisfaction as well as estoppel, to which the plaintiffs filed a motion to strike, which was overruled. The plaintiffs' original demurrers were reassigned to the pleas as amended and were overruled. On July 5, 1961, additional testimony was taken under the complaint as amended, and the pleas of the defendant as amended were replications by the plaintiffs identical to their replications in the first trial of the cause. On July 25, 1961 the court rendered a judgment finding the issues in favor of the defendant. On August 23, 1961, the plaintiffs filed a motion for a new trial, which motion was presented to the court on said day and set for hearing on the 5th day of September, 1961, with stay of execution granted in the said order. on September 5, 1961, the cause was continued until September 16, 1961, at which time the court entered and order overruling the motion. On January 25, 1962, this appeal was taken.

The original complaint, consisting of three counts, was based on an act of the Legislature of Alabama, Act No. 567, approved Nov. 19, 1959, as shown by the Recompiled Code of Alabama 1958, Pocket Part, as Sec. 53(1), Title 39, as follows:

'The holder of a worthless check, draft, or order for the payment of money shall have a right of action against the person who unlawfully made, uttered, or delivered the same to him or to his endorser. And such action may be maintained though there has been no prosecution or conviction or acquittal of the defendant for his unlawful act. Such action must be brought within one year from the date of the unlawful act. The plaintiff in such action may recover such damages, both punitive and compensatory, including a reasonable attorney fee, as the jury or court trying the case may assess.'

This complaint was later amended, additional pleas filed, with the rulings on demurrers, motions to strike, as indicated above.

There is no conflict in the evidence as to the following facts:

Appellants (plaintiffs below) undertook to sell a house and lands located in DeKalb County, Alabama, to J. P. Hanks, Jr., the appellee, and received from the appellee two checks drawn on a Miami, Florida, bank. The first check was dated July 13, 1960, in the amount of $1700, and was given as 'good faith money' pending the final closing of the sale. The second check for $3970 was given three days' later and represented the balance of the down payment not covered by the first check.

Appellants executed and delivered a warranty deed, and the appellee in return executed to them notes and a mortgage to secure the balance of the purchase price, and took possession of the premises.

Shortly after appellee and his family took possession of the premises, they ran out of water. The water supply came from a deep well which was located in and under the house itself. Because of its location, it was not possible to drill it deeper without severe damage to the house itself.

Appellants after receiving the checks in question deposited them in the bank in Valley Head, Alabama. They were duly presented at the drawee bank in Miami and returned because of improper endorsement. Before the checks were again presented to the bank, appellee discovered the alleged fraud concerning the water supply and stopped payment on the checks; thus, the drawee bank refused to pay them.

It is uncontroverted that at all times the appellee had a balance in excess of $10,000 in the account on which the checks were drawn.

The real controversy arises over what was said by the seller and the buyer with reference to the water supply. The testimony on that question is in conflict.

Appellee testified that Mr. Barrett, one of the appellants, told him there would be sufficient water in the will to satisfy his needs. Appellee admits that Mr. Barrett told him that a third party could tell him about the well, but further testified that he relied on Mr. Barrett's assurance that it was sufficient and sought no outside information.

Mr. Barrett, one of the appellants, testified that at the time of the conversation about the water supply before Mr. Hanks bought the house, that he, the appellant, told the appellee that you couldn't water the grass from the well.

There is other conflicting evidence as to the adequacy of the water supply, but it would serve no useful purpose to go into a detailed discussion of the evidence.

After the appellee moved out of the house, he sent appellant a warranty deed to the property and a money order for all the expenses which the appellant had incurred in the sale. These were delivered to the appellants by the Sheriff of DeKalb County.

Appellants filed 31 assignments of error, most of which are concerned with rulings on demurrers and motions to strike.

The case is due to be affirmed for more than one reason.

None of the assignments of error are mentioned in brief. Supreme Court Rule 9, Code 1940, Appendix, provides that both the propositions of law and the...