Johnston v. Isley, 8 Div. 59.

• Decision Date: 17 October 1940
• Docket Number: 8 Div. 59.
• Citation: 198 So. 348,240 Ala. 217
• Parties: JOHNSTON v. ISLEY.
• Court: Alabama Supreme Court

198 So. 348

240 Ala. 217

JOHNSTON v. ISLEY.

8 Div. 59.

Supreme Court of Alabama

October 17, 1940

Rehearing Denied Nov. 14, 1940.

Appeal from Morgan County Court; Seybourn H. Lynne, Judge.

Action of assumpsit by P. R. Isley against J. D. Johnston, wherein defendant filed a counterclaim.Judgment for plaintiff, and defendant appeals.Transferred from Court of Appeals, under Code 1923, § 7326.

Affirmed.

J. N Powell, of Hartselle, and Newton B. Powell, of Decatur, for appellant.

Harris & Harris, of Decatur, for appellee.

BROWN Justice.

Action of assumpsit for money had and received.The complaint consists of the common count, and the record recites, after showing ruling on demurrer, "Whereupon, the defendant pleads the general issue with leave to give in evidence any matter that would be a good defense if specially pleaded.Thereupon, issue is joined upon the complaint and the said plea of the general issue."

We construe these recitals to warrant the admission of evidence that tended to support any valid special defense to the action, not required to be presented by sworn plea.Green et al. v. Marlin et al.,219 Ala. 27, 121 So. 19;Malcomb v. Robinson et al.,230 Ala. 474, 161 So 510.

The evidence shows that defendant owns eighty acres of woodland a mile and a half southwest of Somerville known as the Gill place; that the parties entered into an agreement that plaintiff enter upon one forty of this land, make clearings thereon, and have as compensation for such clearings the wood and timber cut and the use of the land for cultivation for a fixed period.Plaintiff's contention was that he was to have the use of the land for cultivation for three years while the defendant contends that the plaintiff was to have the wood and timber cut in clearing and the use of the land for two years only.The controversy in this case arises over a clearing of eight acres made in 1934.The plaintiff had the use of this clearing for 1935 and 1936, but in 1937, the clearing was let to one Lemond and defendant collected the rents from Lemond.The rent for 1937 is the sole subject of this controversy.

The controversy involves purely an issue of fact on which the evidence was in sharp conflict and the trial resulted in a verdict and judgment for the plaintiff.

The defendant was not entitled to the general affirmative charge.There was ample evidence to support the verdict, therefore the motion for new trial...