Dillworth v. Holmes Furniture & Vehicle Co.

• Decision Date: 28 November 1916
• Docket Number: 8 Div. 334
• Citation: 73 So. 288,15 Ala.App. 340
• Court: Alabama Court of Appeals
• Parties: DILLWORTH v. HOLMES FURNITURE & VEHICLE CO.

73 So. 288

15 Ala.App. 340

DILLWORTH v. HOLMES FURNITURE & VEHICLE CO.

8 Div. 334

Court of Appeals of Alabama

November 28, 1916

Appeal from Circuit Court, Madison County; D.W. Speake, Judge.

Action by the Holmes Furniture & Vehicle Company against W.P Dillworth and another. Judgment for plaintiff against defendant Dillworth, and he appeals. Affirmed.

The plaintiff sued W.P. Dillworth and D.C Finney. Judgment for the plaintiff against W.P. Dillworth who appeals. The complaint consists of the common counts for "account" and "account stated," and certain other counts declaring upon a special contract of guaranty, whereby the defendants guaranteed the payment of a note and mortgage executed by A.Y. Parker to plaintiff on February 22, 1911. The defendants pleaded:

(1) "They are not indebted to the plaintiff in the manner and form set forth in the complaint"; and (2) "they owe the plaintiff nothing"

--and also several pleas of no consideration and the statute of frauds. Special plea No. 12 alleges that the consideration for the execution of the note and mortgage on which the contract of guaranty is indorsed, and which is the subject of the suit, was furniture sold by the plaintiff to Parker on October 31, 1910, and on December 12, 1910, for which Parker executed and delivered to the plaintiff two contracts, which described the furniture and stipulated that the title to the furniture should remain in the seller, and that the purchaser should make weekly payments of $5 in one contract and $3 in the other, until the entire purchase price was paid. These title retention contracts further provided that the purchaser should not remove the property from his present residence without the permission or knowledge of the plaintiff. The plea then alleged that the contracts had never been satisfied, canceled, or discharged, but were still held by the plaintiff; that the mortgage and note and the guaranty contract were executed to secure the two said contracts; that the guaranty contract was executed to secure the debt of A.Y. Parker, and does not express a consideration therefor, and was not executed contemporaneously with the creation of the liability for the furniture or the execution of either of said contracts. The thirteenth special plea set up that the consideration for the note and mortgage was certain personal property sold by the plaintiff to Parker on October 31, 1910, and December 12, 1910, and set out the contracts in full, as was done in the twelfth plea. The plea then alleged that prior to the bringing of the action, the plaintiff retook the property for which the contracts were executed and dispossessed Parker thereof and had never returned the same to Parker.

The court, on the motion of the plaintiff, struck pleas Nos. 12 and 13.

On the back of the note and mortgage--a single sheet of paper--is the following indorsement:

"We hereby guarantee the payment of the within note and mtg. when the same is due. W.P. Dillworth, D.C. Finney."

The mortgage was dated February 22, 1911, and described the furniture. The words "value received" appear in the face of the note.

The other facts necessary to understand the opinion appear therein.

The court refused to give at the request of the defendant the following written charges:

"B. If the jury are reasonably satisfied from the evidence that the guaranty contract and the signatures of Dillworth and Finney are written on top of or over the registration certificate stamped on the mortgage then your verdict should be for the defendant Dillworth."

"C. If the jury believe from the evidence that the plaintiff took the note and mortgage from A.Y. Parker on February 22, 1911, and the same were then accepted and received by the plaintiff and the guaranty contract on the back thereof was afterwards executed by Dillworth and Finney, no matter how short a time afterwards, then your verdict should be for the defendant Dillworth."

"D. The fact that the guaranty contract sued on is not dated may be looked to by the jury in connection with all the other evidence in the case in determining whether or not it was executed at one and the same time with the execution of the note and mortgage by A.Y. Parker."

"E. If the note and mortgage was written, executed by Parker and accepted at plaintiff's office in Huntsville and was signed by Dillworth on the back with a guaranty above his name, on the same day, then your verdict should be for the defendant Dillworth."

The court gave the affirmative charge for the defendant Finney, and the jury returned a verdict against the defendant Dillworth. The appeal is by Dillworth alone, notice having been given to Finney pursuant to section 2884 of the Code, as amended by Acts 1911 (Acts 1911, p. 589).

The assignments of error relied upon by the appellant are that the court erred in the following matters: Striking pleas Nos. 12 and 13; permitting the plaintiff to show by oral testimony the real consideration moving between Parker and the plaintiff at the time the note and mortgage were executed; and in refusing to give for the defendant Dillworth the general affirmative charge, as well as in refusing to give written charges B, C, D, and E.

S.S. Pleasants, of Huntsville, for appellant.

R.E. Smith, of Huntsville, for appellee.

PELHAM P.J.

Where it is manifest from the record that both parties have tried a cause to its conclusion, as if issue had been joined upon a special plea, although the record does not disclose such special plea and contains no other plea than the general issue, the appellate court will review the ruling of the trial court as if the issue had been specially pleaded. Richmond & Danville R.R. Co. v. Farmer, 97 Ala. 141, 12 So. 86; Gainer v. Southern Ry. Co., 152 Ala. 186, 44 So. 652; Snellgrove v. Evans, 145 Ala. 600, 40 So. 567; Planters' & Merchants' Independent Packet Co. v. Webb, 156 Ala. 551, 46 So. 977, 16 Ann.Cas. 529; American Sales Book Co. v. Pope & Co., 7 Ala.App. 304, 61 So. 45.

The title retention contracts set up in special pleas 12 and 13 were introduced in evidence by both parties; it was shown without objection that they were never surrendered to Parker; that the property described therein was retaken by the plaintiff prior to the beginning of the action; that it was not returned to Parker; that it was sold at public auction for $50; and it also appears that the question of consideration was the subject of a great part of the testimony, and that the guaranty contract was not executed contemporaneously with the execution of the title retention contracts. It appears, therefore, that the defendant had the full benefit of the matters set up in special pleas 12 and 13, and the court committed no reversible error in striking these pleas.

It is insisted by the appellant that the contract of guaranty was within the statute of frauds in that the only consideration for the note and mortgage which were guaranteed was the original debt of...