Holman v. Clark

• Decision Date: 30 June 1906
• Citation: 41 So. 765,148 Ala. 286
• Parties: HOLMAN v. CLARK.
• Court: Alabama Supreme Court

41 So. 765

148 Ala. 286

HOLMAN v. CLARK.

Supreme Court of Alabama

June 30, 1906

Appeal from Circuit Court, Dale County; A. A. Evans, Judge.

"To be officially reported."

Action by A. S. Clark against J. D. Holman. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Action of detinue by appellee against appellant for the recovery of a mule. The facts are sufficiently stated in the opinion. The plaintiff and defendant each requested the affirmative charge. The court gave this charge for the plaintiff, and refused it for the defendant.

Sollie & Kirkland, for appellant.

J. E Z. Riley, for appellee.

DENSON J.

This is an action of detinue, commenced on the 30th day of November 1904, by A. S. Clark against J. D. Holman to recover a mule. The plaintiff obtained judgment in the circuit court, from which the defendant prosecuted this appeal.

In the complaint the mule is described with particularity, the description being as follows: "One dark bay mare mule about 7 years old, named 'Bert,' known as the McKnight mule,' sold to J. J. McKnight about two or three years ago by A. S. Clark." The plaintiff's right to recover is based on a mortgage executed by J. J. McKnight to him on the 13th day of February, 1903. On the trial, which occurred at the spring term, 1905, the plaintiff testified as follows: "I know the mule for which this suit is brought. She is a black mare mule about 11 years old. She is the same mule claimed in the complaint heretofore read to the jury. She is my mule. I traded for her from one Wilkinson. I traded him an iron gray horse mule for her. McKnight, from whom the defendant got the said mule, had the iron gray mule before the trade was made with Wilkinson. The iron gray mule was mine. I made the trade with Wilkinson for the mule in controversy, and McKnight did not make it. McKnight and myself had talked about our making a trade for the iron gray mule before it was traded to Wilkinson. We had talked about a price for the mule, and probably had agreed on a price; but the mule was to be my mule until it had been paid for. It was not McKnight's mule at all. It was my mule. When I traded with Wilkinson for the mule in controversy, it was left with McKnight; but it was my mule. We talked about McKnight buying the mule, and, if he ever paid for it, it was to be his mule but he never paid for it. We talked about my selling the mule to McKnight, but it is not my recollection that I ever charged the price of the mule on my books. We may have agreed on a price that McKnight was to give for the said mule, but she was to be my mule till McKnight paid for her. On the ______ day of ______, 1903, I sold the mule straight to McKnight and took a mortgage on her. The mortgage now shown me is the mortgage I took on McKnight at the time I sold him the mule." The plaintiff then introduced the mortgage in evidence. The mortgage bears date of execution February 13 1903, and was recorded in Barbour county on the 24th day of March, 1903. Only one mule is described in the mortgage, and the description there given is as follows: "One black-colored mare mule 8 years old."

Objection was made to the introduction of the mortgage on the ground that there was a variance between the description given in the complaint and that contained in the mortgage. Besides the general objection of variance, the specific grounds assigned relate to the color and age of the mule. The objection was overruled. Before considering the ruling of the court on the objection, we will dispose of two exceptions that were taken to rulings on the admissibility of evidence. After the mortgage was read to the jury, the plaintiff, further testifying, said: "The mule was mine up to the time that said mortgage was executed, and it was so understood." In view of all the evidence preceding it, the court did not err in refusing to exclude the expression of the witness, "it was so understood." As used, it must be taken as synonymous with agreement, and is the statement of a fact, not the expression of an opinion or a conclusion. Griffin v. Isbell, 17 Ala. 184; Saltmarsh v. Brewer & Co., 34 Ala. 613; Shafer v. Hausmon, 139 Ala. 237, 35 So. 691.

The plaintiff further testified that at the time he took the mortgage from McKnight to himself the relation of landlord and tenant existed between him and McKnight, McKnight being on plaintiff's farm in Barbour county, Ala.; that the relation of landlord and tenant had existed between him and McKnight for several years; and that he had furnished McKnight several mules besides the one in controversy. "The defendant objected to the plaintiff so testifying as to the several years' tenancy of the said McKnight, upon the grounds that it is immaterial, illegal, and incompetent evidence." The part of the evidence referred to in the objection, "the several years' tenancy," we think was properly allowed. It was explanatory of McKnight's possession of the mule prior to the time the mortgage was executed. The plaintiff then testified that no price was agreed on between him and McKnight for the mule and no price for her was ever charged on his books.

Recurring to the admissibility of the mortgage as evidence: "It is a general rule that the substance of the issue must be proved, and any departure in the evidence from the substance constitutes a variance, and is fatal." Another rule stated by Mr. Greenleaf is that "whatever cannot be stricken out without getting rid of a fact essential to the...