Bomar v. Rosser

• Citation: 31 So. 430,131 Ala. 215
• Parties: BOMAR v. ROSSER.
• Decision Date: 26 November 1901
• Court: Supreme Court of Alabama

31 So. 430

131 Ala. 215

BOMAR v. ROSSER.

Supreme Court of Alabama

November 26, 1901

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

Action by D. E. Rosser against R. R. Bomar. Judgment for plaintiff and defendant appeals. Reversed.

This action was instituted by appellee against appellant upon certain promissory notes executed by the latter to the former. The defendant pleaded several set-offs, and, among others, a note executed by the plaintiff to one Harlan, and purchased by and transferred to the defendant before suit. Plaintiff replied to the plea of set-off of said note that it had been procured by false representations, in that the consideration was the purchase of a tenth interest in a certain patent, and it was represented that certain other persons had purchased or would purchase an interest in said patent, and join in the organization of a joint-stock company to put the patent upon the market. Demurrers to the replications setting up this defense by way of set-off were overruled, but evidence was received, without objection tending to prove the set-off, and to overcome the effect of the replications. The evidence tended to show that plaintiff obtained a deed to a one-tenth interest in the patent, but that the persons who, according to the representations, had purchased or would purchase an interest in the patent, and join in the organization of the company, had not and would not do so. It was further shown that there was an attempt to organize the company, and plaintiff refused to participate therein. The evidence further disclosed that interests in the patent were purchased by parties as responsible as those in regard to whom representations were alleged to have been made. Upon the trial the defendant asked the following written charges, which were refused, to wit: "(4) The court charges the jury that a meritorious patent right has a monied value, in proportion as it secures convenience decreases labor, or enhances pleasure." "(7) The court charges the jury that unless the alleged representations by defendant as to Joe Cothran having taken and as to Bob Smith agreeing to take, each, an interest in the said patent right, damaged the plaintiff, then he cannot avail himself of any such alleged representations." There were verdict and judgment for plaintiff, and defendant appeals, assigning for error, among other things, the refusal to give the charges above set out.

H. W. Carden, for appellant.

TYSON J.

Notwithstanding the special replications to the defendant's plea of set-off were eliminated by demurrer, it appears that evidence was introduced without objection which was only relevant to the issue tendered by them, and that the case was tried upon that irrelevant evidence. "Parties may try their controversies on illegal evidence, if they choose to do so." Moon's Adm'r v. Crowder, 72 Ala 79; Osborn v. State, 125 Ala. 106, 27 So. 758. The failure to object to the admission of this evidence or to move its exclusion was a waiver of all objection to its legality. Thomason v. Odum, 31 Ala. 108, 68 Am. Dec. 159; Masterson v. Pullen, 62 Ala. 145. "Where the issues presented by the pleadings are mutually disregarded, and evidence not competent under the pleadings is admitted, it is erroneous to refuse an instruction based on such evidence." 11 Enc. Pl. & Prac. 166. The reason for this rule is stated in 2 Thomp. Trials, § 2310, to be: "The object of pleadings being merely to notify the opposite party of the ground of action or defense, if the party comes into court it is not perceived why he may not waive the notice as in every other case, although the pleading may not advise him of the case or defense which is actually tendered in the evidence. Several of the best courts in the country proceed upon this enlightened view. The sound view is believed to be that the instructions have no connection with the pleadings, except through the evidence. The jury ...