Hackett v. Cash

• Decision Date: 11 May 1916
• Docket Number: 3 Div. 219
• Citation: 72 So. 52,196 Ala. 403
• Parties: HACKETT v. CASH.
• Court: Alabama Supreme Court

72 So. 52

196 Ala. 403

HACKETT v. CASH.

3 Div. 219

Supreme Court of Alabama

May 11, 1916

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Assumpsit by Thomas L. Hackett against Will Cash. From a judgment for defendant on his plea of recoupment, plaintiff appeals. Affirmed.

Plaintiff sought to recover on 14 promissory notes. The defendant set up that he bought a house and lot from Mr. Hackett, the purchase price being $2,200, including a $1,600 mortgage which was assumed by Cash in the purchase, the defendant paying $100 in cash, and agreeing to pay $30 per month, for which he executed the notes and mortgages sued on; that at the time of the transaction Hackett sold Cash an unexpired insurance policy for $1,500, which Hackett claimed the original mortgagee Loeb held; that Hackett sold the policy to him, but never transferred it; that the house was worth $2,000, and burned, and Cash had never collected anything on the $1,500 policy, but that he held another policy on the house and some furniture, which he took out himself, and on that policy he collected about $200; and that the premium on the unexpired term of the $1,500 policy entered into and was a part of the consideration of the notes sued on. It was admitted in open court between the parties that at the time of the trial Mr. Loeb held a mortgage on the property of $1,600, which mortgage was made previous to the time that Hackett bought the property, and was assumed by Hackett when he bought it, and by Cash when he bought from Hackett; that at the time of the fire there was in existence one policy in the Royal Exchange Assurance Company for $1,000, originally issued to Ivey, who sold the property to Hackett, and subsequently transferred by the company to Hackett, and that this policy was held by Mr. Loeb, the mortgagee, and contained the usual standard mortgage clause; that there was also a policy in the Glens Falls Insurance Company for $1,500 in the name of Thomas L. Hackett, which was in the possession of Mr. Loeb, and about which this case arose, which contained the usual loss payable form, and further provided that:

"This entire policy shall be void if insured now have or shall hereafter make or procure any other contract of insurance, whether valid or not, on the property covered in whole or in part by this policy."

There was judgment for defendant on the plea of recoupment in the sum of $1,123.

Steiner Crum & Weil, of Montgomery, for appellant.

Weil Stakely & Vardaman, of Montgomery, for appellee.

ANDERSON C.J.

Whether or not the act of 1915 (page 824) regulating appeals from the judgments of the court without a jury applies to this case which was tried before the statute was enacted, we need not decide, for the reason that it wrought no change from the present practice act of the city court of Montgomery as to the weight to be accorded the finding of the trial court upon the facts, and which, with many other similar statutes, has been construed to mean that it can only apply where the opportunities of this court to consider the evidence is the same as the trial court, that is, when the evidence was taken by deposition; but, when the evidence is ore tenus, or partly so, and the trial court has the advantage of seeing and hearing the witnesses, this court will not disturb the conclusion unless it is plainly and palpably contrary to the weight of the evidence. Thompson v. Collier, 170 Ala. 469, 54 So. 493, and a long line of decisions there cited. The Legislature evidently intended, by this act of 1915, to provide for trials without a jury in all courts unless it was demanded, and to do away with the necessity of excepting to the finding or conclusion upon the facts in order to review the same in the appellate court, but did not mean to override...