Frank v. Thompson

• Decision Date: 05 December 1894
• Citation: 105 Ala. 211,16 So. 634
• Parties: FRANK v. THOMPSON.
• Court: Alabama Supreme Court

16 So. 634

105 Ala. 211

FRANK v. THOMPSON.

Supreme Court of Alabama

December 5, 1894

Appeal from city court of Birmingham, Jefferson county; H. A Sharpe, Judge.

Action by Joe Frank against W. A. Thompson. Judgment was rendered for defendant, and plaintiff appeals. Reversed.

The action was brought on a promissory note which was executed by the defendant, W. A. Thompson, and F. P. Thompson. The defendant pleaded several pleas of set-off, and also the following pleas: "(2) That said defendant owes nothing on said note; (3) That said note has been paid and discharged, before this action was commenced, from the assets of the estate of Frank Thompson, in the hands of the said plaintiff." To the third plea the plaintiff demurred on the grounds-First, that it does not show in what way the note was paid from the estate of the said Frank Thompson, in the hands of the plaintiff; second, that it does not state the facts from which the court could know whether or not the note sued on had been discharged, but merely states the conclusion of the pleader; third, the plea is too indefinite, in that it does not set forth with sufficient particularity in what way the said note was discharged; fourth, because said plea does not aver facts showing that the plaintiff has disposed of any of the estate of said Frank Thompson. This demurrer to the third plea was overruled, and the plaintiff duly excepted thereto. The note was introduced in evidence, and there was no dispute as to the validity of it, as to the correctness of the credits, or as to the attorney's fee stipulated for in the note. It was executed on August 12, 1890, and payable to the order of the plaintiff 60 days after date. As is stated in the opinion, the evidence showed that the note sued on evidenced a debt of the defendant, W. A. Thompson, and that F. P. Thompson was a surety on said note.

The evidence for the defendant tended to show that in the spring and summer of 1890 F. P. Thompson was engaged in the saloon business in the city of Birmingham, having two places of business; that said F. P. Thompson, being in bad health, left Birmingham some time in August, and turned over his business to the plaintiff, Joe Frank; that said F. P. Thompson died in November, 1890; that the defendant, W. A. Thompson, qualified as the administrator of the estate of F. P. Thompson; and that the plaintiff, Joe Frank, turned over to him certain accounts belonging to the estate of F. P. Thompson, which accounts the defendant redelivered to the plaintiff, Joe Frank, upon an agreement that they, together with the property of F. P. Thompson in the saloons, should be applied to the payment of the said note, and the balance, if any returned to the defendant. The testimony for the plaintiff in rebuttal to the defendant's testimony, tended to show that the saloons kept by F. P. Thompson were the property of Joe Frank, and that said F. P. Thompson was manager of them by the employment of said Joe Frank; that the licenses for doing the business in each of the saloons were taken out by the plaintiff, or by Joe Frank & Co.; and that the proceeds of the business done in them were turned over to the plaintiff, by his direction. The testimony for the plaintiff further tended to show that the defendant had repeatedly promised to pay the note since the death of F. P. Thompson. Upon the introduction of one G. A. Thompson, brother of the defendant, as a witness for the defendant, he testified substantially as follows: "That Frank Thompson was at his brother's, in North Birmingham, the latter part of July. Did not know how long he was there,-only a few days. That he remembered that Frank Thompson had a conversation with the plaintiff at the latter's place of business in Birmingham. This was some time in August, 1890. That Frank Thompson and witness came to town in a carriage, and went to plaintiff's place of business, and Frank Thompson went in, and stayed a while, while witness sat in the carriage. That he came back out, and got in the carriage to go to North Birmingham, and plaintiff came to the carriage; and Frank Thompson told plaintiff that he was going out to his father's, and that he would be back in fifteen days. Plaintiff told him to go to his father's, and stay until he got well; and Thompson then told the plaintiff to take charge of his business or the business (he could not recollect which) until he returned, and furnish such things as were needed in the saloons, and keep a strict account of it, until he returned. This was some time in August." E B. McCary was introduced as a witness in behalf of the defendant, and testified that he knew Frank Thompson in his lifetime; that he heard a conversation between him and plaintiff in August, 1890; that Thompson told plaintiff he was sick, and going to his father's, in Fayette county, and said: "Mr. Frank, I am going home, to be gone fifteen or twenty days. You take charge of my business, and run it while I am gone; and anything the boys need here, furnish it for them." And Mr. Frank told him to go home, and stay until he got well, and that he would attend to the business while he was gone. Witness could not say whether Frank Thompson said "my business" or "the business." Upon the introduction of the plaintiff, Joe Frank, as a witness, he was asked, among others, the following question: "You heard detailed here this morning a conversation that is said to have occurred in front of your store while Mr. Thompson was in a carriage, before he went to his father's. State what occurred in that conversation." The defendant objected to the question, which objection the court sustained, and the plaintiff excepted. Upon the introduction of one Shelton as a witness in behalf of the defendant, he testified that he rented to F. P. Thompson the saloon in which he carried on business. The witness was then asked the following question: "Will you just state whether or not you had a contract of rental with him?" Plaintiff objected to this question on the ground that it was incompetent, irrelevant, and immaterial, which objection the court overruled, and the plaintiff excepted. "Yes, sir; I made a contract with him." The witness was then asked what rent he paid. The plaintiff objected to this question on the ground that it was illegal and irrelevant, which objection the court overruled, and the plaintiff excepted. The witness then answered that he paid rent for the whole term Mr. Thompson was here, and after he left the plaintiff paid the rent; that plaintiff commenced paying rent some time in the summer of 1890, and continued to pay down to 1892. The plaintiff then asked the witness this question on cross-examination: "When Mr. Thompson made the lease you speak of, didn't he say that Mr. Frank, the plaintiff, was interested with him in the business?" Defendant objected to this question, which objection the court sustained, and the plaintiff excepted.

The court, in its oral charge, among other things, instructed the jury as follows: "That if from the evidence they should believe that the saloon property and the accounts belonged to F. P. Thompson at the time of his death, and that there was an agreement between the plaintiff and defendant, as administrator of the estate of F. P. Thompson, deceased, that the effects of Frank P. Thompson in plaintiff's hands and the proceeds thereof, collected and to be collected by plaintiff, should be applied to the payment of the note, and they should further find that plaintiff did have in his hands effects of Frank P. Thompson's estate, and that pursuant to such agreement he received, as the proceeds of the sale of the property and collections of said accounts, money sufficient to pay said note, then such receipt and retention of the money under such agreement would amount to a payment of the note." To this portion of the oral charge the plaintiff duly excepted, and also separately excepted to the court's refusal to give each of the following written charges requested by him: (1) "The court charges the jury that the evidence in this case does not show, or tend to show, that there was an agreement between the plaintiff and the defendant that the effects of Frank P. Thompson were to be taken by plaintiff as payment on the note sued on." (2) "If the jury believe the evidence, they must find the issue in favor of the plaintiff." (3) "If the jury believe the evidence, they must find the issue in favor of the plaintiff, and assess his damages at the face value of...