Farrell v. Anderson-Dulin-Varnell Co.

Citation100 So. 205,211 Ala. 238
Decision Date17 April 1924
Docket Number8 Div. 644.
PartiesFARRELL v. ANDERSON-DULIN-VARNELL CO.
CourtSupreme Court of Alabama

Rehearing Denied May 15, 1924.

Appeal from Circuit Court, Madison County; James E. Horton, Jr. Judge.

Action in assumpsit by the Anderson-Dulin-Varnell Company against J R. Farrell. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p 449, § 6. Affirmed.

White & Watts, of Huntsville, for appellant.

Griffin & Ford, of Huntsville, for appellee.

ANDERSON C.J.

The affidavit to the account was sufficient to render it admissible as evidence under section 3970 of the Code of 1907 as amended by the Act of 1915, p. 609. The affiant was bookkeeper of the plaintiff, and the affidavit sets up this fact and that he has personal knowledge of the correctness of the account after the allowance of all credits, of which the said J. R. Farrell is entitled "as he verily believes." Of course, the affidavit must be based upon personal knowledge, but we think this one shows that it was and that the same was sufficiently positive notwithstanding the addition of the words "verily believes." His belief is not based upon information, but upon his personal knowledge. "Where the essential facts have been stated positively, an additional statement of information and belief is harmless." 2 C.J. 355. Here the additional statement does not contain the word "information," but is a positive statement of belief based upon personal knowledge. Moreover, this was not the exclusive method of proving the account, and Willis proved the correctness of same in his deposition which preceded the introduction of said account. Sullivan Timber Co. v. Brushagle, 111 Ala. 114, 20 So. 498.

Assignment of error 3 goes to the failure of the court to exclude the answer to the following interrogatory to witness De Groat:

"Do you know of your own personal knowledge that J. M. Willis was indebted to the plaintiff at the time of said transaction between himself and J. R. Farrell?"

The answer was:

"J. M. Willis was indebted to the plaintiff at the time the transaction took place."

This was, in effect, an affirmative answer to the question and the only ground assigned for the exclusion of same was that it was "not responsive to the question."

Assignment of error 2 goes to the refusal of the court to exclude the entire deposition of W. A. De Groat. It is sufficient to say all of said testimony was not illegal, even if any of it was, and if any of it was proper the trial court cannot be put in error for overruling the general motion. For like reason the trial court cannot be put in error under assignment of error 4, which goes generally to all of the interrogatories to witness De Groat.

As to whether or not defendant had paid other people that Willis stated he owed was not material as the trial court offered to let him prove that the plaintiff's account was not included.

There was no error in giving the plaintiff's requested charge 1. It did not invade the province of the jury, but hypothesized and presented to them the real issue in the case whether or not defendant agreed as a part of the consideration of the trade to pay plaintiff the claim as embraced in the statement Exhibit A, as testified by Willis and which was denied by the defendant.

It is next urged, in brief of appellant's counsel, that the defendant's general charge should have been given for the reason that the proof does not justify the right to maintain an action for money had and received, that the facts do not establish an implied contract, and if there was a contract at all it was an express one between defendant and Willis to which the plaintiff was neither a party nor privy. It was held in our early case of Huckabee v. May, 14 Ala 263, which has been often cited and followed, that, when one sold or traded a thing of value to another, and the consideration or a part thereof was the assumption of a debt owing from the vendor to a third person by the vendee, and the third person assented thereto while the promise remained in force, the third person may sue in his own name for money had...

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6 cases
  • Fidelity & Deposit Co. of Baltimore, Md., v. Rainer
    • United States
    • Alabama Supreme Court
    • 21 Marzo 1929
    ... ... the person to whom the money is to be paid may maintain an ... action therefor. Fite v. Pearson, 215 Ala. 521, 111 ... So. 15; Farrell v. Anderson-Dulin-Varnell Co., 211 ... Ala. 238, 100 So. 205; Liles v. Cox, 215 Ala. 327, ... 110 So. 716; Copeland v. Beard, 217 Ala. 216, 115 ... ...
  • Willingham v. Wesley Hardware Co.
    • United States
    • Alabama Supreme Court
    • 29 Junio 1933
    ... ... not determine, as no such ground of objection was assigned ... Code § 7666; Farrell v. Anderson-Dulin-Varnell Co., ... 211 Ala. 238, 100 So. 205 ... Many ... objections were made and exceptions reserved by the appellant ... ...
  • Fite v. Pearson
    • United States
    • Alabama Supreme Court
    • 4 Noviembre 1926
    ... ... promise, though the consideration does not move from the ... latter. Alabama City Co. v. Kyle, 204 Ala. 597, 87 ... So. 191; Farrell v. Anderson Co., 211 Ala. 238, 100 ... So. 205; Alabama Power Co. v. Hamilton, 201 Ala. 62, ... 77 So. 356; Pugh, Stone & Co. v. Barnes, 108 Ala ... ...
  • John F. Clark & Co. v. Nelson
    • United States
    • Alabama Supreme Court
    • 31 Marzo 1927
    ... ... circumstances is well settled in this jurisdiction ( ... Liles v. Cox [Ala.Sup.] 110 So. 716; Farrell v ... Anderson Co., 211 Ala. 238, 100 So. 205; Huckabee v ... May, 14 Ala. 263; ... [112 So. 820] Carver v. Eads, 65 Ala. 190), and is not here ... ...
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