Bomar v. Rosser

• Decision Date: 30 June 1899
• Citation: 26 So. 510,123 Ala. 641
• Parties: BOMAR v. ROSSER.
• Court: Alabama Supreme Court

26 So. 510

123 Ala. 641

BOMAR v. ROSSER.

Supreme Court of Alabama

June 30, 1899

Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.

Action by D. E. Rosser against R. R. Bomar. From a judgment for plaintiff, defendant appeals. Reversed.

Upon the trial of the case the plaintiff introduced the three bonds sued on, which were signed by the defendant, and in which he promises to pay to the plaintiff the several amounts claimed. The defendant introduced in evidence a note for $100, which was given by the plaintiff, D. E. Rosser, to one James Harlan, on November 1, 1898, payable 30 days after date. The defendant, as a witness in his own behalf testified that the note of Rosser to Harlan was given for the purchase of a one-tenth interest in the right to sell a patent churn in the state of Alabama, and that he (the defendant) purchased said note from Harlan before the institution of the present suit, and he was the owner thereof at the time of giving his testimony. The defendant also testified that the plaintiff was indebted to him in several amounts for articles of merchandise sold him, also for the use of his office and medical books, and for tuition and the rent of a house. There was introduced in evidence a territorial deed of patent, by which James Harlan transferred to D. E. Rosser a one-tenth interest for the sale of a patent churn in Alabama, for the purchase of which D. E. Rosser executed his said note. The defendant and other witnesses testified that they purchased a like interest in the patent right, and gave their notes therefor. The plaintiff, in rebuttal, introduced evidence tending to show that he was induced to purchase the one-tenth interest in said patent right by Harlan and the defendant, Bomar; that the defendant at the time he was trying to induce him (the plaintiff) to purchase a one-tenth interest, represented to the plaintiff that Bob Smith, Cothran, and Morrison had each purchased a one-tenth interest in said patent, and that upon this representation he (the plaintiff) purchased the one-tenth interest. The testimony of the witness in his own behalf, and other witnesses introduced by him, tended to show that the patent itself was worthless, and of no value. The plaintiff introduced one Joe Cothran as a witness, who testified that he stated to Dr. Bomar and James Harlan that he would come down to Dr. Bomar's house, and examine the patent, and thought that he would take a share (a one-tenth interest) in the patent; that he did go down, but did not, and never agreed to, take a share therein, inasmuch as he regarded the patent worthless. The plaintiff then asked this witness the following question: "Did Dr. Bomar tell you that Bob Smith had taken a share in this patent?" The defendant objected to this question, because it called for irrelevant illegal, and immaterial evidence. The court overruled the objection, and the defendant duly excepted. The witness answered that his recollection was that he did tell him that Bob Smith had taken a share. The defendant, upon being reintroduced as a witness, testified that he did not tell the plaintiff that Smith, Cothran, and Morrison had each taken a share, and that he did not make any false representations to induce the plaintiff to purchase a one-tenth interest in said patent. Upon the introduction of all the evidence, the court at the request of the plaintiff, gave to the jury the following written charges: "(1) The court charges the jury that if they believe, from the evidence, that the patent right sold to Rosser is worthless, then Bomar cannot offset the note for $100. (2) The court charges the jury that if they believe, from the evidence, that Bomar told the plaintiff that Bob Smith had bought stock in the patent right, or that Bob Smith was going into the same; that such representations were false, fraudulent, and material to the contract in this case; and that Rosser, induced and controlled thereby, took stock in said patent right,-then Rosser is not liable, and the note for $100 to Harlan, and transferred to Bomar, cannot be offset against plaintiffs." To the giving of each of these charges the defendant separately excepted, and also separately excepted to the court's refusal to give each of the following charges requested by him: "(1) The defendant asks the court to charge the jury that, if they believe the evidence in this case, they must find the $100 liable to be offset against the demand of the plaintiff. (2) The defendant asked the court to charge the jury that mutual debts-liquidated or unliquidated demands-subsisting between Dr. Bomar and Mr Roser at the commencement of this suit may set off one against the other, whether the legal title be in Dr. Bomar or not. (3) The court charges the jury that the law of set-off, the defense offered in this case, is a very broad one, and the defendant in this case is entitled to any claims, offsets, or discounts had or possessed against the plaintiff at the commencement of this suit; and, if he has proved that he possessed the same, then the jury...