Duncan v. Freeman

• Decision Date: 29 January 1896
• Parties: DUNCAN v. FREEMAN ET AL.
• Court: Alabama Supreme Court

19 So. 433

109 Ala. 185

DUNCAN v. FREEMAN ET AL.

Supreme Court of Alabama

January 29, 1896

Appeal from circuit court, Tallapoosa county; N. D. Denson, Judge.

Action by E. P. Duncan against M. A. Freeman and another on a promissory note. From the judgment rendered, plaintiff appeals. Affirmed.

The appellant E. P. Duncan, brought the present suit against the appellees, M. A. Freeman and J. A. Freeman; and the complaint counted upon a promissory note executed by the defendants. Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe from the evidence that Mrs. M. A. Freeman replevied the goods sold by Douglass & Duncan, and further, if they believe from the evidence that she rented a storehouse in which these goods or any part of them were sold by her, or for her benefit, then these are circumstances which the jury may consider, to ascertain whether she ratified said contract of sale for said goods." (2) "If the jury believe from the evidence that the defendant, M. A. Freeman, ratified and confirmed said sale, they must find a verdict for the plaintiff against her as well as the other defendant." (3) "The jury may look at the recitals in the mortgage given to secure the payment of the note sued on, to ascertain whether said note was the debt of the defendant, M. A Freeman." The other facts necessary to a full understanding of the decision on the present appeal are sufficiently stated in the opinion. There were verdict and judgment for the defendant Mrs. Freeman, but against defendant J. A. Freeman in favor of plaintiff. Plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

J. M Chilton, P. O. Stevens, and John A. Terrell, for appellant.

Sorrell & Sorrell and Thos. L. Bulger, for appellees.

HARALSON J.

The note sued on represents the purchase price of a stock of goods sold by the firm of Douglass & Duncan, of which firm the plaintiff, E. P. Duncan, was a member. Besides the general issue, the defendants pleaded payment. The defendant Mrs. M. A. Freeman, pleaded a special plea, setting up that she was a married woman, the wife of J. A. Freeman,-the other defendant,-when the note was given, and she signed it as surety for her husband, and that she owed the plaintiff nothing at the time. To this special plea, the plaintiff filed a replication, in which he admitted the coverture as alleged, but averred that the note was Mrs. Freeman's own contract, and was entered into with the written consent of her husband, the said J. A. Freeman. The case was tried on issue joined on this replication. There was judgment in favor of plaintiff against the defendant, J. A. Freeman, for $896.32, but against plaintiff, in favor of the wife, Mrs Freeman. The husband testified, that the trade for the purchase of the goods, was his own, and his wife had no concern in it; that the price of the goods had been agreed on, and an inventory taken, before he said anything to his wife about her assisting him; that he and his wife executed the note, and gave a mortgage on her lands to secure it; that plaintiff had sold some of the land embraced in the mortgage, and had bid it off for himself at $1,000; and that he had paid in money and merchandise, $316.66. Mrs. Freeman testified, that she had nothing to do with the purchase of the goods; had never conferred with Douglass and Duncan on the subject, and never authorized her husband to buy them; that her husband said he was going to buy the goods and needed some help, and would have to give a mortgage on his crops; that she signed the note and mortgage, not knowing that her land was embraced in it; that her husband told her it was a mortgage on the crops. It was shown by her, too, that she could read and write. The note and mortgage were introduced in evidence by the plaintiff. The mortgage was on real estate only. Its recital in the beginning, as to its consideration is, "Whereas, Mrs. M. A. Freeman am justly indebted," and concludes with the provision, that any balance of the proceeds of the mortgaged property which may remain after paying the debts, shall be paid over "to Mrs. M. A. Freeman, her agent or attorney." The plaintiff also testified, that he had only received $170 on the note; that defendant, J. A. Freeman, came to him and his partner, and proposed to buy the stock of goods for the price expressed in the amount of the note sued on, and they refused to sell them to him, but stated that they would sell them to his wife, and they had no conversation with Mrs. Freeman on...