Dominick v. Randolph

Decision Date06 February 1900
Citation124 Ala. 557,27 So. 481
PartiesDOMINICK v. RANDOLPH.
CourtAlabama Supreme Court

Appeal from circuit court, Perry county; John Moore, Judge.

Action by M. L. Randolph against Martin Dominick. From a judgment in favor of plaintiff, defendant appeals. Reversed.

In 1892 a decree was rendered by the chancery court of Hale county in favor of C. L. Stickney against M. L. Randolph, the appellee and the chancellor, in rendering the said decree, ordered that a certain house and lot in Greensboro, Ala., the property of M. L. Randolph, be sold by the register for the satisfaction of the decree. On January 23, 1893, the register, in obedience to the mandate of the decree, sold said property at public outcry, and at said sale Martin Dominick, the appellant, bid $1,400, which was the best and highest bid, and became the purchaser. Said Martin Dominick failed to pay the purchase money, and the property was advertised for resale. Upon the day appointed for such resale, Martin Dominick entered into a contract with M. L Randolph, by the terms of which, upon the consideration of the postponement of said resale, the said Martin Dominick contracted to pay to M. L. Randolph any damages resulting from the failure on his part to comply with the terms of the original sale. Upon Martin Dominick's failure to pay the money by the time of the date to which the sale was postponed, the property was resold at public outcry, and was purchased for $1,200. M. L. Randolph now brings the present suit against Martin Dominick, seeking to recover damages for the breach of said contract. The defendant set up as a defense, by special plea, a want of consideration for said contract; that at the time of the making of said contract Martin Dominick was non compos mentis, and that at said sale there was no memorandum of said sale made by the auctioneer and that the contract of purchase was void under the statute of frauds. The facts relating to the rulings on the pleas which are reviewed on the present appeal are sufficiently stated in the opinion. The plaintiff demurred to the plea of the defendant setting up the statute of frauds upon the ground that the contract sued on, which is set out in the complaint, shows a valuable consideration, and that the agreement sued upon was entered into by the defendant subsequent to the sale referred to in the plea of the defendant. This demurrer was sustained, and the defendant duly excepted. The plaintiff introduced in evidence, after making proof of its execution, the contract which was sued on. There was evidence introduced on the part of the defendant that at the time of the execution of the contract the defendant was non compos mentis, and was not capable of entering into a binding obligation. The plaintiff offered to introduce in evidence the register's report to the chancery court of the first sale, which was made on January 20, 1893, which report recited the sale of the property which was ordered by the decree of the court, and stated that Martin Dominick had become the purchaser thereof at the price of $1,405, but had paid only $5 of the amount so bid. The defendant objected to the introduction of this report of the register upon the ground that it was not shown what action if any, was had on the report by the court; because the report of the register, until acted upon by the court, is no part of the record of the case, and does not prove any of the facts recited therein; and because said report is incompetent, illegal, and irrelevant evidence. The court overruled this objection, and allowed the report to be introduced in evidence, and the defendant duly excepted. The plaintiff then introduced the minutes of the chancery court of the spring term, 1893, which recited that the case of Stickney against Randolph, in which the decree and order of sale had been made, "be, and hereby is, continued under the former order until the next term of this court." The plaintiff then introduced in evidence the report of the register of the second sale of the said property, which recited that it was sold for $1,200. This report was confirmed. Upon the examination of J. D. Griffin, a witness for the defendant, after having testified that he was intimately acquainted with the defendant, and had known him for a long time before 1893, when he entered into the contract involved in this suit, he further testified that in 1892 he had a serious spell of sickness, and that since said spell he had not been the same man as he was before; that in his judgment his mind was affected. It had been previously shown by the testimony of T. F. Hall, who was the son-in-law of the defendant, that said T. F. Hall purchased from the defendant in the spring of 1893 a plantation owned by him. Upon the cross-examination of said J. D. Griffin, after he had testified to his knowing about the purchase of the plantation from the defendant by T. F. Hall, he was then asked by the plaintiff, "was he [the defendant] capable of making a deed at that time?" The defendant objected to this question upon the ground that it called for illegal evidence, and that the witness was not competent to testify as to the mental condition of the defendant at the time of making the deed. The court overruled this objection, and the defendant duly excepted. In rebuttal to the testimony of the defendant's witness tending to show that the defendant at the time of entering into the contract involved in this controversy was not mentally capable of entering into a binding obligation, the plaintiff introduced as a witness Charles E. Waller, Esq., who testified that he had known the defendant about 12 years, and had had a great many conversations with him, and that the contract sued on in this case was written by the witness, and was signed by the defendant in the witness' presence. Thereupon the plaintiff asked the witness the following question: "Was or was not the defendant of sound mind on the day of the execution of the contract sued on?" The defendant objected to this question upon the ground that the witness was not shown to be an expert, and his acquaintance with the defendant was not shown to be of sufficient long standing and intimacy to render him competent to answer the question propounded. The court overruled this objection, and the defendant duly excepted. The witness answered that he considered the defendant a man of sound mind at that time. Upon the introduction of Cad Jones as a witness for the plaintiff, he testified that he was the register in chancery, and that he had known the defendant for several years prior to the execution of said contract, but did not know him intimately; that he had seen him occasionally and had had casual short conversations with him, but had no business transactions with him until a short time before the sale of the property at which the defendant became the purchaser; that the defendant discussed the purchase of the property with him, and they had several conversations about it. Thereupon the plaintiff asked the witness Jones the following question: "On January 23, 1893, and on the day of the execution of the contract sued on, what was the condition of defendant's mind? Was he a sane or insane man?" The defendant objected to this question upon the same ground as to the question asked the witness Waller. The court sustained the objection, and the defendant duly excepted. The other facts of the case pertaining to the rulings of the court on the present appeal are sufficiently stated in the opinion. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Thos. E. Knight and P. A. Tutwiler, for appellant.

Stewart, Graffenried & Wallace, for appellee.

DOWDELL J.

After pleas in bar have been filed to the complaint, it is discretionary with the court to permit the withdrawal of such pleas, and to allow the defendant to file demurrers. The action of the court in the exercise of such discretion, as a rule, is not revisable on appeal. It is shown by the record in this case that on the 27th day of August, 1895, a plea in bar was filed to the complaint by the defendant, represented by his attorneys, Tutwiler and Knight. The judgment entry of the court shows that on the 3d day of September, 1897 (the day of the trial of the cause), P. A. Tutwiler, one of the attorneys who had previously appeared for the defendant "moved the court to appoint an attorney to defend this suit for and on behalf of said defendant, on the ground that said defendant is insane and incapable of defending his said suit," which said motion was by the court granted, and P. A. Tutwiler, an attorney at law practicing in said court, was by the court appointed to defend the suit for said defendant. The bill of exceptions recites that "the said P. A. Tutwiler, who was a practicing attorney at the bar of said circuit court, as an amicus curiæ moved the court to appoint an attorney to defend this suit for and on behalf of the defendant, Martin Dominick, on the ground that the said defendant was at the time of filing said motion insane and incapable of defending his said suit, and was so insane at the time the suit was brought, which motion was argued by counsel and submitted to the court, and upon...

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