Espalla v. Wilson

• Citation: 5 So. 867,86 Ala. 487
• Parties: ESPALLA ET AL. v. WILSON ET AL.
• Decision Date: 18 April 1889
• Court: Supreme Court of Alabama

5 So. 867

86 Ala. 487

ESPALLA ET AL. v. WILSON ET AL.

Supreme Court of Alabama

April 18, 1889

Appeal from circuit court, Mobile county, WILLIAM E. CLARKE, Judge.

This action was brought by Wilson, Sage & Co., suing for the use of T. H. Cox, against Espalla & Haynie, as partners; was founded on the defendants' acceptance of a bill of exchange, drawn on them by one W. W. Haughton; and was commenced on March 6, 1886. The complaint contained the common money counts, and a special count on the acceptance in the statutory form, (Code, p. 790, form 2,) except that the bill of exchange was set out in full, but without copying the acceptance; and it was added that the bill of exchange was entitled to a credit of $17, paid on the 1st December, 1884. The bill of exchange, as set out in the complaint, was dated October 7, 1884, addressed to the defendants, and requested them to pay to Wilson, Sage & Co., "agents for Theo. H Cox, seventeen dollars on the 1st of December, 1884, and each month thereafter to November 1, 1885, inclusive." The defendants demurred to the special count, (1) because it was not alleged or shown that the acceptance was in writing; (2) because the bill of exchange, as set out, was void for uncertainty; and (3) because it was discharged by the payment of $17, on December 1, 1884. The court overruled the demurrer, and the defendants then pleaded (1) want of consideration, (2) failure of consideration, (3) payment, and three other special pleas, which averred, in substance, that the acceptance was given for the rent of a house, leased by plaintiffs, as agents of said Cox, to W. W. Haughton, at a stipulated rent, payable monthly; that the plaintiffs agreed and promised to make necessary repairs, and to put the premises in good tenantable condition, but failed to do so and that Haughton, after notice to them, abandoned the premises because of such failure. To these special pleas the plaintiffs filed several replications, denying that there were any stipulations for repairs in the original contract for rent, or when the bill of exchange was given and accepted; alleging that Haughton continued in the occupation of the premises for eight months or more, and abandoned them at the expiration of the business season; and that defendants, as his agents, had received moneys to be applied to the payment of said bill of exchange. The defendants moved to strike out these special replications, on several grounds particularly specified,-15 to one, and 11 to another. On these pleadings the judgment entry recites the rulings of the court as follows: "Motion to strike replications from the files overruled. Came the parties by their attorneys, and the defendants' motion to hear the demurrers on file is submitted to the court; and the court finding no such motion on file, but a motion to strike the replications from the file, after consideration, the court overruled the motion to strike the said replications from the files."

On the trial, as the bill of exceptions shows, the plaintiffs offered the bill of exchange and acceptance in evidence, and the court admitted them, against the objection and exception of the defendants. It was proved that the accepted bill was given for the rent of a house leased by plaintiffs, as agents for Cox, to W. W. Haughton, at a monthly rent as stipulated but the evidence was conflicting as to whether this was a part of the original contract or not, the defendants insisting that the lease had already been signed and delivered before the bill of exchange was presented for acceptance, and that they accepted it for the accommodation of Haughton, without any consideration. As to the question of repairs, the bill of exceptions states: "The proof was without conflict that repairs had to be made, and Haughton knew it before he rented the premises; and there was no conflict whatever in the evidence as to the fact that Wilson and Cox agreed to repair and make the house tenantable. The plaintiff introduced several witnesses who had worked in making repairs on said house, and whose testimony was direct and positive that the premises were duly repaired by Cox, and that Haughton expressed himself satisfied with them; but one of the defendants, Espalla, testified, directly and positively, that the repairs were not made, that Haughton was dissatisfied, and for that reason quit the premises on June 1, 1885, after repeated notice to Cox and Wilson that he was going to quit on that account." The bill of exceptions purports to set out all of the evidence, but a fuller statement of it is unnecessary.

At the request of the plaintiffs, in writing, the court gave the following charges to the jury: (1) ...