Callan v. Anderson

• Decision Date: 19 November 1901
• Citation: 31 So. 427,131 Ala. 228
• Parties: CALLAN v. ANDERSON.
• Court: Alabama Supreme Court

31 So. 427

131 Ala. 228

CALLAN v. ANDERSON.

Supreme Court of Alabama

November 19, 1901

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

Assumpsit by John F. Anderson against T. E. Callan. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.

This was an action of assumpsit to recover $100 alleged to be due as a balance of purchase money of lands sold by plaintiff to defendant. The defendant pleaded the general issue and special pleas, in which he set up that the cause of action by the plaintiff for the amount due on the purchase money of the lands sold to the defendant was one entire cause of action and could not be split up into two or more suits; and that at the last term of the court the plaintiff had sued on said cause of action, and recovered of the defendant the amount claimed in the complaint in the former suit, and that this judgment was a bar to the recovery in the present action. Issue was joined on this plea. The evidence for the plaintiff tended to show that in the fall of 1897 John F. Anderson sold to the defendant a tract of land, the purchase price of which was $1,200, $1,000 to be paid in cash and the remaining $200 to be paid in two installments of one and two years after date; that it was a part of the contract of sale that the defendant, who was the purchaser, should execute his two notes for $100 each, but that he had failed to do so; that the plaintiff at the former term of the court, after December, 1898 (the time of the maturity of the first payment), had instituted a suit against the defendant, and had recovered judgment thereon for $100; and that the present suit was for the remaining $100, as balance due on the purchase price of said lands. There were introduced in evidence the pleadings and the judgment in the former suit. The amended complaint upon which that cause was tried sought to recover $100. The defendant pleaded non assumpsit, and that he was not indebted to the defendant by reason of the failure of consideration and defect in the title. The judgment entry showed that the plaintiff had recovered in the suit for $100, with interest. Upon the cross-examination of the plaintiff as a witness, he testified that when the former suit was first instituted it was for the full amount of $200 but that the complaint was subsequently amended so as to seek a recovery for $100. The defendant, as a witness in his own behalf, testified that he was indebted to the plaintiff in no sum whatever; that the agreed purchase price of the property was $1,000, and the deed so recited the consideration, but that it was understood between him and the plaintiff that if all of the lands purchased lay on one side of a creek the defendant would give to the plaintiff $200 more for the lands; that after this agreement the lines of the lands were run out by a surveyor, and it was ascertained that the lands lay upon both sides of the creek, and not upon one side; and that, therefore, he was never indebted to the plaintiff in the sum of $200. The defendant further testified, "The $200 which I was to pay him was a lump sum, and not in installments, and was to be paid in one and two years, as I might elect." At the conclusion of the testimony of the defendant as a witness the plaintiff's attorney moved the court to exclude all of his testimony. The court granted this motion, and the bill of exceptions recites that the court stated, "The judgment entry was an adjudication of the fact that he (Callan) was to pay in installments of one and two years." To this ruling the defendant duly excepted. There were other witnesses introduced by the defendant, whose testimony tended to show that the $200 which was to be paid by the defendant was to be in one installment, and not in two installments, as claimed by the plaintiff. Upon the introduction of all the evidence the court, at the request of the plaintiff, gave to the jury the general affirmative charge in his behalf. To the giving of this charge the defendant duly excepted.

J. E Brown, for appellant.

Martin & Bouldin, for appellee.

McCLELLAN C.J.

As we understand the testimony of Callan in regard to the...