Cassels v. Alabama City, G. & A. Ry. Co.

• Decision Date: 07 December 1916
• Docket Number: 7 Div. 774
• Parties: CASSELS v. ALABAMA CITY, G. & A. RY. CO.
• Court: Alabama Supreme Court

73 So. 494

198 Ala. 250

CASSELS v. ALABAMA CITY, G. & A. RY. CO.

7 Div. 774

Supreme Court of Alabama

December 7, 1916

Appeal from City Court of Gadsden; John H. Disque, Judge.

Assumpsit by the Alabama City, Gadsden & Attalla Railway Company against C.G. Cassels. Judgment for plaintiff, and defendant appeals. Corrected and affirmed.

Culli &amp Martin, of Gadsden, for appellant.

Goodhue & Brindley, of Gadsden, for appellee.

THOMAS J.

The several counts of the complaint upon which the trial was had were, the common counts, and a count claiming for the breach of a contract to pay motor rent. The defendant pleaded the general issue, payment, and set-off.

Appellant's assignments of error numbered from 5 to 9, inclusive, and 17 18, 38, and 39, challenge rulings on admission of the evidence of witnesses Schuler and Cassels, on the ground, as is insisted, that this evidence contradicted the written contract in evidence. Such was not its effect. It only tended to show that the plaintiff had previously furnished power to Cassels' Mills, a corporation, in which the defendant was interested; that it became indebted to plaintiff for such power; and that defendant desired the motor from the old mill to be removed to the new mill, to be operated by defendant and others.

Witness Schuler's statement of the agreement as to payments on this old account by the defendant is set out in the record as follows:

"Witness further stated, without being questioned further, took the property of Charlie Cassels and start in operation there, to run the new mill that they had purchased and installed or were going to install at that place. We wanted the old account paid first, and they hesitated about paying it. *** So we got the motor later without bringing that question to an issue at that time, because we thought there was some possibility of the motor being held in the old plant. *** Instead of moving it to the new place, we moved it down to our plant and told the Messrs. Cassels that we wouldn't consider installing our motor in the new plant until the old account was paid. It remained down at our plant for some little time, and finally they agreed--Mr. Charlie Cassels agreed to pay the old account, and, upon his agreeing to do so, we *** transferred the motor from our plant and installed it in the new place, and then they wanted to know if we would not divide up the payments of the old account, distribute it throughout a period so as to make the payments come easier, and that we later agreed to do, so that the amount was divided into a certain number of payments and incorporated, the contract that was entered into with, and signed by, Charlie Cassels, and these payments extended over a period of about a year, so much a month and included the normal amount charged as rental for the motor and light for the plant. My recollection is that it was $15, $10 a month being for the lights furnished and the balance, $5, for motor rent, etc."

Under this evidence, there could be no question that, after the motor was so removed and installed in the new mill at the defendant's request, recovery could be had, based on this promise of the defendant to pay, though the written contract had never been entered into. By the terms of the contract, the dates of the payments were postponed so that the payments should mature as monthly installments. The debt became existent when the motor was removed by plaintiff at defendant's request, and the agreement to pay said old debt was entered into as a consideration precedent to the removal and installation of the motor in the new mill. 8 Cyc. 148; Hall v. Tanner, 91 Ala. 363, 8 So. 348. This is not in conflict with the rule declared in Burroughs v. Pate, 166 Ala. 223, 229, 51 So. 978.

There was no error in that part of the oral charge challenged in the fifty-ninth and sixtieth assignments of error.

Defendant's counsel insist that error was committed when the trial court admitted evidence of the price paid by plaintiff for the new starting box, and of the amount of freight charges thereon. These objections and exceptions are covered by many assignments of error. In the case of Jonas v. King, 81 Ala. 285, 1 So. 591, the holding was that the plaintiff can recover under the common counts, notwithstanding the fact that the evidence shows an express contract, if the evidence further shows that the contract has been fully executed, with no duty remaining but that of the defendant to pay the money. Maas et al. v. Montgomery Iron Works, 88 Ala. 323, 6 So. 701; Merrill v. Worthington, 155 Ala. 281, 46 So. 477.

Notwithstanding the rent contract between the parties imposed upon the defendant the duty of returning the motor to the company in condition as good as when installed, usual wear and tear excepted, under the issues presented we are of opinion that the judgment should be reduced by the aggregate amount of $157.55, comprising the two items in the account, $148.75, the price paid by the plaintiff for a new starting box, and the $8.80 freight thereon to Gadsden. The amounts of these items are clearly and definitely fixed by the evidence. Appellee insists in its brief, however, that the rulings on the admission of evidence, and the several charges of the court, as to these items, were without error; but with good judgment consents that, if there was error as to the two items in question, a proper remittitur may be made by this court. This course is supported by recent decisions of this court. In Cook & Laurie v. Bell, 177 Ala. 618, 635, 59 So. 273, 279, a case in assumpsit, Mr. Justice Somerville discusses the question of remittitur as follows:

" 'Remittiturs,' it is said, 'are favored by the courts in proper cases, for the promotion of justice and the ending of litigation.' Richardson v. Birmingham, etc., Co., 116 Ala. 381, 22 So. 478; A.G.S.R.R. Co. v. Roberts, 113 Tenn. 488, 82 S.W. 314, 67 L.R.A. 495 . The application of this practice is especially simple and satisfactory in a case like the present, where the excess is precisely calculable and separable from the gross amount awarded. To set aside a verdict in the lower court, or to reverse a judgment on appeal because of such an error, in the face of the plaintiff's offer to remit the excess, would be a reproach to judicial procedure. *** However, appellee offers in

this court to remit such an amount as may cure the manifest error of the verdict, which amount we find to be $41.90. The judgment will therefore be affirmed, and a remittitur duly entered in the sum above specified."

In Ex parte Steverson, 177 Ala. 384, 389, 58 So. 992, 993, a case for damages for the creation of a nuisance, the act of 1911 (Acts 1911, p. 587) providing for remittitur in the Supreme Court or the Court of Appeals, because the judgment of the lower court...