Formby v. Whitaker

• Decision Date: 09 June 1932
• Docket Number: 7 Div. 144.
• Citation: 142 So. 536,225 Ala. 154
• Parties: FORMBY v. WHITAKER.
• Court: Alabama Supreme Court

142 So. 536

225 Ala. 154

FORMBY v. WHITAKER.

7 Div. 144.

Supreme Court of Alabama

June 9, 1932

Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.

Action on note by H. B. Whitaker, doing business as Whitaker Tire Company, against T. H. Formby. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

T. Ben Kerr, of Piedmont, and Merrill, Jones, Whiteside & Allen, of Anniston, for appellant.

H. H Evans, of Anniston, for appellee.

BROWN J.

This is an action of assumpsit on a promissory note, and the complaint is substantially in the form prescribed by the statute, alleging that the note was "made by the defendant."

The defendant interposed, among other pleas, the following "2. The defendant further pleads and says that a part of the consideration of the note sued on is for gasoline and oil sold by the plaintiff to certain third parties and charged to defendant, and after defendant had given plaintiff notice not to sell said third parties gasoline and oil on his account or credit."

This plea, on the motion in writing of the plaintiff, with all other pleas except the plea of "not guilty," was stricken from the file, and on the trial the defendant offered to amend his pleas and the court declined to allow the amendment for the reason, to use the language of the bill of exceptions: "The Court: We can't do that now. We have a pleading week and we cannot allow pleadings to be settled when we have a jury here. To this action of the Court the defendant duly and legally excepted."

Said plea 2. though it may be conceded that it is demurrable, it is not frivolous, irrelevant, or prolix, and the court erred in granting plaintiff's motion and striking the plea from the file. Brooks v. Continental Insurance Co., 125 Ala. 615. 29 So. 13. This ruling is subject to review without exceptions being reserved. Code 1923, § 9459.

The court erred also in refusing to allow the defendant to amend the plea. Code 1923, § 9513.

The defendant proposed to offer evidence going to show that after the defendant gave the plaintiff personal notice not to sell, to truck or bus drivers in defendant's employ, gas and oil on defendant's account, such sales were made and the price thereof entered into the consideration of the note, which was given by the defendant without knowledge that such items were included in the consideration of the note. This...