Johnson Bros. v. Selden

• Court: Alabama Supreme Court
• Writing for the Court: DOWDELL, J.
• Citation: Johnson Bros. v. Selden, 140 Ala. 418, 37 So. 249 (Ala. 1904)
• Decision Date: 09 June 1904
• Parties: JOHNSON BROS. v. SELDEN ET UX.

37 So. 249

140 Ala. 418

JOHNSON BROS. v. SELDEN ET UX.

Supreme Court of Alabama

June 9, 1904

Appeal from Circuit Court, Marengo County; John C. Anderson, Judge.

Action by Johnson Bros. against John A. Selden and his wife. Judgment for defendants. Plaintiffs appeal. Affirmed.

The complaint contained several counts. One count was a common count, in which the plaintiffs sought to recover upon an account stated. In another count the plaintiffs sought to recover an amount alleged to be due upon a bond, which, it was alleged in the complaint, was executed by the defendants and contained a waiver of exemptions. In another count the plaintiffs sought to recover the same amount alleged to be due upon a mortgage, which mortgage was set out at length in the count and contained a waiver of exemptions. In another count the plaintiffs sought to recover the same amount alleged to be due upon a promissory note executed by the defendants, which, it is alleged in said count, contained a waiver of exemptions. To this complaint the defendants demurred, among others, upon the ground of a misjoinder of counts in the complaint. This demurrer was sustained. The defendant Sallie A. Selden pleaded coverture, and the plaintiffs confessed the plea. The defendant John A. Selden pleaded payment, failure of consideration, partial failure of consideration, and set-off. It was shown by the evidence that John A. Selden and his wife executed a mortgage to the plaintiffs to secure an indebtedness evidenced by a promissory note, which was to cover advances to be made by the plaintiffs to the said John A. Selden. When the mortgage debt fell due, said Selden delivered many bales of cotton the proceeds of which were credited to his account, and what was sued for was the balance due upon the indebtedness to the plaintiffs after crediting the proceeds of said cotton. After the cotton was so delivered to the plaintiffs, they made a general assignment for the benefit of their creditors, and the mortgage executed by the defendant John A. Selden was assigned and transferred to the assignee. It was shown that after the transfer and assignment of the mortgage to the assignee he took possession of all the corn, cotton seed, and fodder raised by said Selden during the current year, and the mules, horses, surrey, and wagon owned by said Selden, which were included in said mortgage, and under the power contained in said mortgage sold all of said property together at private sale for $400. During the trial the defendant asked several witnesses what was the value of the property which was taken by the assignee. To each of these questions the plaintiffs separately excepted, and separately excepted to the court overruling each of their said objections. The other facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence the plaintiffs requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give the same: "The court charges the jury that they can only allow the defendant credit for $440 for the horses, mules surrey, wagon, corn, fodder, and...