Hodges v. Kyle

• Decision Date: 25 November 1913
• Citation: 9 Ala.App. 449,63 So. 761
• Parties: HODGES v. KYLE.
• Court: Alabama Court of Appeals

63 So. 761

9 Ala.App. 449

HODGES v. KYLE.

Court of Appeals of Alabama

November 25, 1913

Rehearing Denied Dec. 18, 1913

Appeal from Tuscaloosa County Court; H.B. Foster, Judge.

Detinue and trover by W.B. Kyle against U.S. Hodges. Judgment for plaintiff, and defendant appeals. Affirmed.

The following charges were given at the plaintiff's request "(1) The court charges the jury that the burden of proof is on the defendant to reasonably satisfy you from the evidence of the correctness of any item charged to the plaintiff by the Iron City Lumber Company, which was not authorized by the mortgage in evidence. (2) The court charges the jury that plaintiff's failure to object to any charges made against him by the Iron City Lumber Company can only be considered as a circumstance against him, and not as conclusive proof that he admitted them to be correct, or that they were correct."

The following charge was refused to defendant: (1) Affirmative charge as to first count.

W.T. Hill and McKinley, McQueen, Hawkins &amp Snow, all of Tuscaloosa, for appellant.

Brown &amp Ward, of Tuscaloosa, for appellee.

WALKER, P.J.

Under the evidence adduced in the trial, the maintenance of the claim of the plaintiff (the appellee here) to the personal property sued for was dependent upon his sustaining the contention, which there was evidence to support, that at the time of the attempted foreclosure of a mortgage of that property which he had given he had paid in full the debt secured by that mortgage, with the result that the foreclosure was unauthorized and ineffectual to bar his title or right to the property.

The court was not in error in admitting the testimony of the plaintiff as to the value of the property sued for and as to the value of its rental or hire. It appeared from his testimony that he was acquainted with the property in question and had had opportunities of knowing the prices at which that and similar property had been sold and rented. This was enough to qualify him to give his estimate or opinion as to the values inquired about. To establish the competency of a witness to testify as to such matters, it is not required to be shown that he had had such special experience or training as to entitle him to be called an expert. Hodge et al. v. Rambo, 155 Ala. 175, 45 So. 678; Montgomery-Moore Mfg. Co. v. Leith, 162 Ala. 246, 50 So. 210; Hooper v. Dorsey, 5 Ala.App 463, 58 So. 951.

On the cross-examination of the plaintiff, the facts were brought out that he had executed a mortgage of the property sued for which the defendant introduced in evidence, and that the mortgagee, in response to the plaintiff's written request, had furnished him a statement of the account secured by the mortgage. On the plaintiff's redirect examination, after he had introduced in evidence the statement of account about which he had testified on his cross-examination, which statement showed a balance owing to the mortgagee on the mortgage debt, and had testified that the mortgagee had advertised and sold the property under the mortgage after the debt secured by it had been fully paid, he was asked by his counsel to state whether or not the account which he had introduced in evidence was correct, and, if not, to state in what particulars it was incorrect. The defendant's objection to this question was overruled. It is insisted in the argument of the counsel for the appellant that the objection should have been sustained on the grounds stated in support of it; that, the plaintiff himself having introduced the account in evidence, he could not be permitted to elect to be bound by such parts of it as might be favorable to him and to disaffirm such parts of it as might be unfavorable to him; and that, by introducing it in evidence without qualification or a statement of his purpose to contest any of its items, he had estopped himself to deny the correctness of the account in any particular. The rule that, where an account is made out with debits and credits and presented to the debtor, he cannot claim the credits without submitting to the debits, cannot be so applied as to prevent the debtor from proving that certain charges shown against him in that statement are incorrect, where there is evidence of the payments made by the debtor other than that furnished by the creditor's admissions contained in his statement. Loventhal & Son v. Morris, 103 Ala. 332, 338, 343, 15 So. 672. In the present case the plaintiff did not have to rely on the statement of the account furnished to him by the mortgagee to prove the payments which he had made on the mortgage, as his testimony was to the effect that that statement contained a correct list of the payments he had made. In this situation there was nothing in the mere fact of his introducing that statement in evidence to preclude his proving that some of the charges against him were incorrect. The defendant was in no position to sustain a claim that the plaintiff, by introducing the statement of account in evidence, estopped himself to raise any question as to its correctness. There is no room for a claim that the defendant, or any one with whom he was in privity, relied upon that conduct with the result of changing his position or taking any action to his prejudice, as the introduction of the account in evidence was almost immediately followed by the offer of the plaintiff to prove the incorrectness of some of its charges against him. One who claims that another has estopped himself by his conduct cannot sustain such claim without showing that he relied on that conduct and was induced to act or to omit action on the faith of it. Huntsville Elks' Club v. Garrity-Hahn Building Co. (Sup.) 57 So. 750; 16 Cyc. 734. This essential element of an estoppel was lacking. The defendant could not have been misled to his prejudice by the failure of the plaintiff, at the time he introduced the mortgagee's statement of the account in evidence, to express his purpose to contest the correctness of it. The bringing and prosecution of the suit for...