Hodges v. Tennessee Implement Co.

• Court: Supreme Court of Alabama
• Citation: 26 So. 490,123 Ala. 572
• Parties: HODGES v. TENNESSEE IMPLEMENT CO.
• Decision Date: 13 June 1899

26 So. 490

123 Ala. 572

HODGES
v.
TENNESSEE IMPLEMENT CO.

Supreme Court of Alabama

June 13, 1899

Appeal from circuit court, St. Clair county; George E. Brewer, Judge.

Action by the Tennessee Implement Company, plaintiff, against T. J. Hodges, defendant, for the balance due upon a note. There was a judgment for the plaintiff, and the defendant appeals. Affirmed.

On the trial of the case it was shown by the evidence for the plaintiff that there had been paid on the note two payments, which were entered as credits on said note. These payments aggregated 25 per cent. of the face value of the note. There was introduced in evidence a check on the First National Bank of Birmingham for the sum of $9.30, which was the amount of the second credit entered on said note, and this check was as follows: "Pay to the order of Tennessee Implement Company nine 30/100 dollars in full of claim against T. J. Hodges." This check was dated July 16, 1897, and the stamp on its face showed that it was paid by the First National Bank of Birmingham on July 20, 1897. The president of the plaintiff company testified that the check was received in regular mail, and applied by the plaintiff as a credit on the indebtedness of T. J. Hodges as evidenced by the note sued on; that the plaintiff promptly notified the defendant by letter dated July 21, 1897, that the plaintiff would not accept the check, except as a credit on the defendant's indebtedness; and that said check was so used and appropriated by the plaintiff. The defendant excepted to this testimony on the ground that it sought to vary by parol the written contract of agreement between the parties. The court overruled this objection, and the defendant duly excepted. The defendant testified as a witness in his own behalf that, after he had contracted the indebtedness to the plaintiff, he failed in his mercantile business, and made an assignment; that, in the administration of the trusts by the assignees, they had paid the defendant's creditors 15 per cent. of their claims; that after the settlement by the assignees the defendant borrowed money, and made the proposition to his creditors to pay the additional 10 per cent. of their claims is settlement and discharge of their demands against the defendant; that all of the creditors except the plaintiff and one other accepted the proposition; and that said check was sent to the plaintiff for this purpose. Upon the introduction of all the evidence, the court, at the...