Butler v. Walton

• Decision Date: 30 October 1951
• Docket Number: 8 Div. 904
• Parties: BUTLER v. WALTON.
• Court: Alabama Court of Appeals

Page 369

56 So.2d 369

36 Ala.App. 319

BUTLER v. WALTON.

8 Div. 904.

Court of Appeals of Alabama.

Oct. 30, 1951.

Rehearing Denied Dec. 4, 1951.

Potts & Young, Florence, for appellant.

Bradshaw & Barnett and Elbert B. Haltom, all of Florence, for appellee.

Defendants' given charge 2 is as follows: 'I charge you gentlemen of the jury, that the plaintiff landlord, James T. Butler, has the burden of proving every material allegation of his complaint. In this case the plaintiff claims a landlord's lien on certain property, and the burden is on him to show the existence of the lien, and that the property seized under the attachment is subject thereto.'

PRICE, Judge.

Appellant, plaintiff below, sued Rutledge Walton for $850.00, with interest, balance due on purchase price of a tractor, with attachments, sold by plaintiff as landlord to defendant as tenant, and sued out an attachment to enforce his landlord's lien against the tractor, attachments and certain cotton grown on the rented premises in 1949.

Defendant filed plea A, the general issue, and special pleas B, C, and D. Plea D was in recoupment, claiming $125.00 for breach of warranty of the condition of the tractor. B and C were pleas of set off for work and labor done by defendant for plaintiff.

The plaintiff, appearing specially for that purpose, filed motion to strike the special pleas because they were filed on the day set for trial and no copy of said pleas had been served on plaintiff or his attorney of record as required by law. The court entered the following order on the motion: 'It appearing that copies of said pleas B, C, and D, were served on the attorney for plaintiff on the day the cause was set for trial and the Court having considered plaintiff's special motion to strike defendant's pleas B, C, & D, it is therefore considered, ordered, and adjudged that said special motion be and the same hereby is overruled.' The plaintiff's objection to 'being required to ask for a continuance or go to trial,' was also overruled. Appellant's counsel asserts in brief that the court's offer of a continuance was refused.

The plaintiff then demurred to pleas B, C, and D. Demurrer was sustained as to plea C and overruled as to pleas B and D. Defendant then filed plea E. The motion to strike was not filed to plea 'E.' The original demurrer was filed to plea 'E,' and an additional demurrer filed to pleas B, D and E, which were overruled.

Plaintiff filed general replications to all of said pleas and special replications to pleas B and E. Defendant's demurrer was overruled as to special replications to plea B and sustained as to special replications to plea E. Plea B was later withdrawn.

The case was submitted to the jury on the complaint, general issue, pleas D and E, and plaintiff's general replications.

A verdict for defendant was returned by the jury.

Motion for a new trial was overruled and plaintiff perfected his appeal to this court.

Appellant sold to appellee a John Deere tractor, with attachments, for the price of $1400.00. $400.00 was paid in cash. $150.00 was to be paid by allowing appellant to use the tractor.

It is admitted that at the time of the sale appellee rented 65 acres of land from appellant for the crop year 1949, and the tractor was used to work the land and that the relation of landlord and tenant existed between the parties.

Appellant contends the balance of $850.00, with interest, on the tractor was to be paid when the cotton was gathered in the fall of 1949.

Appellee insists there was no agreement as to the due date of the balance, and nothing said about interest, and that on August 27th, before the rent was due, appellant and appellee entered into an agreement whereby the amount owing on the tractor was to be applied to the amount due by appellant to appellee for work done on minnow ponds and the balance due on the tractor was paid by abutting his claim against appellant for extra work against what he owed appellant, and that appellant was to settle later for the difference.

The evidence was in sharp conflict as to the alleged breach of warranty of the condition of the tractor. Appellee contended the appellant told him it was in good mechanical condition and was in good enough condition to make a crop, the purpose for which appellee was buying it; that he relied upon such warranty and that a visual inspection would not disclose the defects in the tractor.

He introduced testimony to the effect that the tractor was in poor mechanical condition and unfit to make a crop. The parts man and mechanic for the tractor agency testified as to the repairs to the tractor and the reasonableness of the charges for parts and labor, and the job orders for repairs were introduced.

Appellant denied making any guarantee as to the condition of the tractor, but that he told appellee he could get on it and try it, that 'I hadn't been looking on the inside to see what was in there.'

It is undisputed that about April 1, 1949, a verbal contract was made whereby Dallas Butler was to build 16 minnow ponds for appellant and his brother, Oakley Butler, for the contract price of $1600.00 and that Oakley Butler advanced to Dallas Butler $1400.00 as partial payment on the contract to buy another tractor to use in building the ponds.

There is disagreement as to whether appellee was a partner to the contract in the beginning, but it is admitted he was later brought in as a partner by Dallas Butler.

It is admitted that 17 minnow ponds were built by appellee and Dallas Butler.

It is also undisputed that under the original contract there was to be extra work done and that appellant and Oakley Butler agreed to pay some money above the contract price of $1600.00.

Appellant's contention is that none of the extra work was to be done on the ponds or in the pond area, and that the extra work done consisted of leveling off a place for a sales building; digging a ditch outside the pond area and clearing off bushes between the ponds and creek, and that $46.00 was charged for this work.

Appellee insists that $1200.00 worth of work was done, over and above that contemplated in the original contract, and described the work, the number of hours each tractor was used, and stated the charge was reasonable for the tractors and drivers. He also testified the extra work was pointed out by appellant.

It is admitted that on August 27, 1949, after completion of the ponds, all of the parties involved met at a fish fry at the ponds and that a settlement was had.

The testimony as to the terms of the settlement is in sharp conflict.

Appellee contends that the four parties agreed that Oakley Butler was to pay Dallas Butler for the balance due under the contract for work on the ponds, and that appellant and appellee were to settle for the extra work between themselves and that appellant told appellee to let the amount owing on the tractor go on the extra work and said 'I will see you and settle up later.'

Appellant denies that he agreed to settle with appellee at a later date. He insists that the balance due under the original contract was $200.00 plus $100.00 for the extra minnow pond, and at the fish fry Oakley Butler said if Dallas would settle with appellee he, Oakley, would give Dallas a check for $300.00 and let the $100.00 due appellant for use of the tractor go in on it. Appellant contends this was accepted by appellee and Dallas as partners and was in full settlement and that he never agreed to pay any sum to appellee.

Appellee testified that in November, 1949, when appellant demanded payment of $850.00 as balance due on tractor, appellee reminded him of the claim for extra work and that appellant stated Oakley Butler had already settled with them.

Appellant contends that on November 10, 1949, appellee applied for a loan at the Lexington bank to pay for the tractor but was turned down and he then refused to execute a note for the balance due, but after he failed to borrow the money he stated to appellant: 'I owe you for the tractor and you owe me for the work on the ponds.'

On cross examination appellee testified he tried to borrow the money, but that 'I told him he owed me more than I owed him.'

Appellant assigns as error the action of the court in overruling the special motion to strike pleas B, C, & D.

The Supreme Court, in the case of Stull v. Daniel Machine Company, 207 Ala. 544, 93 So. 583, 585, had under consideration a similar question. In that case Judge Miller observed:

'Demurrers to the complaint were ruled on by the court on the same day the set-off pleas were filed. The filing of the set-off pleas were at that time allowed by the court as a matter of right to the defendant. It was not necessary for the defendant to file these pleas until the court overruled the demurrers to the complaint. Hence the motion to strike these pleas of set-off from the file was properly refused by the court. * * * When two of these pleas of setoff, numbered 5 and 7 were filed, the plaintiff was entitled to legal notice thereof and the right to plead or demur to them within 30 days thereafter, because they were pleas on which the judgment by default may be taken; they each claimed an amount in excess of the amount claimed by plaintiff. * * * The plaintiff did not object to going on with the trial because he had not been served with notice of the filing of the pleas of set-off as required by law and because he had not been allowed the time to plead to them as the law permits. A set-off plea, upon which a judgment by default may be taken, is regarded as a cross-action by defendant against plaintiff; and, when filed, a copy thereof must be issued by the clerk and served by the sheriff upon the plaintiff or his attorney of record in the cause. This gives plaintiff time to secure his witnesses and prepare his defense. * * * This court has held:

"A general appearance by a defendant * * * may even dispense with the necessity of the service of all process, the...