Davis v. Reid Lumber Co.

• Decision Date: 14 October 1920
• Docket Number: 2 Div. 724
• Citation: 86 So. 379,204 Ala. 517
• Parties: DAVIS v. REID LUMBER CO.
• Court: Alabama Supreme Court

86 So. 379

204 Ala. 517

DAVIS v. REID LUMBER CO.

2 Div. 724

Supreme Court of Alabama

October 14, 1920

Appeal from Circuit Court, Hale County; B.M. Miller, Judge.

Detinue by the Reid Lumber Company against C.M. Davis. Judgment for plaintiff, and the defendant appeals. Transferred from Court of Appeals, under section 6, p. 449, Acts 1911. Corrected and affirmed.

Robison Brown, of Tuscaloosa, for appellant.

Thomas E. Knight, of Greensborough, for appellee.

ANDERSON C.J.

The complaint was under Code form and was not subject to defendant's demurrer. It is true that, when the plaintiff attempts to recover in detinue for the use or hire of property for a period anterior to the service of the writ the original possession by the defendant being rightful, a special demand is necessary. Rust v. Electric Co., 131 Ala. 484, 31 So. 486. But this question should be raised by objections and charges and not by demurrer to a count which is in Code form. Daniel v. Jordan, 146 Ala 230, 40 So. 940. Moreover, the complaint in the instant case only sought damages for the detention from the bringing of the suit.

The trial court did not err in striking from the defendant's plea of set-off so much thereof as sought a judgment over. This was an action of detinue, and, upon the statutory suggestion as to the ascertainment of the amount of plaintiff's debt or demand, the defendant may set up any matter, other than the statute of limitations, that he might have pleaded, had the action been on the debt. Section 3791 of the Code of 1907. This statute, however, authorizes this only to defeat the action of detinue or the fixation of the amount owing from the defendant, and does not contemplate or permit a judgment over for the excess. McDaniel v Sullivan, 144 Ala. 583, 39 So. 355. Moreover, if this were not the case, the appellant cannot complain in the present instance for the reason that the jury found that the offset did not exceed the plaintiff's debt or demand.

The trial court did not err in permitting the witness Reid to testify that the notes were all given at the same time, that is, to show that the date of one of them was not correct and to prove the correct date of same. Burns v. Moore, 76 Ala. 339, 52 Am.Rep. 332; Miller v. Hampton, 37 Ala. 342; Robbins v. Webb, 68 Ala. 393; Elyton Co. v. Hood, 121 Ala. 378, 25 So. 745; Corley v. Vizard, 203 Ala. 564, 84 So. 299.

The case of Formby v. Williams, 203 Ala. 14, 81 So. 682, dealt with an effort to change by parol the maturity or law day of a mortgage. Nor does the case of Cuningham v. Milner, 56 Ala. 522, relate to parol proof as to the true date of a note or deed.

The controverted question in this case was the balance due upon the notes and mortgage, or rather the correctness of certain deductions or rebates upon various shipments of lumber as for shortage in quantity or deterioration in grade or quality. As to all of said items, except check for $46.31, there was...