Kilgore v. Arant

• Decision Date: 28 February 1933
• Docket Number: 5 Div. 895.
• Citation: 25 Ala.App. 356,146 So. 540
• Parties: KILGORE v. ARANT et al.
• Court: Alabama Court of Appeals

146 So. 540

25 Ala.App. 356

KILGORE v. ARANT et al.

5 Div. 895.

Court of Appeals of Alabama

February 28, 1933

Appeal from Circuit Court, Coosa County; E. P. Gay, Judge.

Action on a promissory note by W. H. Kilgore against G. B. Arant and S. B. Penton. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

Henry A. Teel, of Rockford, for appellant.

John A Darden, of Goodwater, for appellees.

SAMFORD Judge.

The plaintiff declared on a promissory note as follows:

"Count 1. Plaintiff claims of the defendants the sum of $306.00 due by promissory note made by the defendants and H. H Powell on November 19th, 1926, and payable on January 20th, 1927, with interest thereon.

"Plaintiff avers that in said note the defendants agreed to pay all cost of collecting the same, including a reasonable attorney's fee, and plaintiff avers that $60.00 is a reasonable attorney's fee for the collection of said note, which further and additional sum plaintiff here claims.

"Plaintiff further avers that the maker of said note did therein waive all right of exemption under the laws of Alabama and of any other State in the United States against the collection of said note and plaintiff claims benefit of such waiver."

To this defendant filed the following pleas:

"1. The allegations thereof are untrue.

"2. The obligation sued was paid before the commencement of this suit.

"4. For further and additional answer to the complaint, defendants aver that the plaintiff is indebted to the defendants in the sum of Five Hundred Dollars by liquidated damages which they offer as a set off against the plaintiff's demand and ask judgment for the excess.

"6. Defendants further state and for a defense to plaintiff's action say, that the note sued upon was given for only a limited time, two wit: two months, in order for the plaintiff to have time to move the principal of said note move on to the farm of the plaintiff or farm in his charge or possession, and until the plaintiff would have time to take up another outstanding mortgage or obligation of one H. H. Powell owed the Alexander City Bank of Alexander City, Alabama, which contained a large amount of personal property security, and then plaintiff was to combine the indebtedness upon which plaintiff is suing the defendants, and defendants aver that the said Powell did move on the farm of the plaintiff or farm in his possession or under his control for two years with the plaintiff, and plaintiff did take up and have transferred the Alexander City obligation transferred to him, the said plaintiff, and that later the said plaintiff did take a chattel mortgage on the said H. H. Powell in which there was much personal property, to-wit $1500.00 or more, in addition to large amount of farm products, to-wit 1000 bushels of corn and twenty bales of cotton, and other farm products, all of which the plaintiff took into his possession or control and either sold or disposed of the same or same now in his possession, all of which should be placed to the liquidation of any indebtedness the plaintiff might claim or hold against these defendants."

To pleas 4 and 6 proper demurrers were filed. These demurrers were overruled and this action of the court is assigned as error.

Plea 4 was subject to the demurrer interposed. A plea of set-off or recoupment should be as certain as to the damages sought to be set off or recouped as if it were an original action brought by defendant for that particular demand. The plea here considered fails to meet this requirement. Code 1923, § 9532, form 40; Greer v. Malone, 180 Ala. 602, 61 So. 285.

The note declared on in this case is a written agreement by the defendants to pay the plaintiff a sum certain at a certain time, without any conditions. The absolute obligation of a note, the unconditional promise to pay, is not to be varied by parol evidence of a conditional promise any more than any other written contract. Hamilton Fur. Co. v. Brenard Mfg. Co., 215 Ala. 187, 110 So. 153.

The rule which permits parol evidence to show the real consideration for a written contract or note does not allow the...