Lackland v. Turner

• Decision Date: 22 December 1921
• Docket Number: I Div. 220.
• Citation: 91 So. 877,207 Ala. 73
• Parties: LACKLAND v. TURNER.
• Court: Alabama Supreme Court

91 So. 877

207 Ala. 73

LACKLAND v. TURNER.

I Div. 220.

Supreme Court of Alabama

December 22, 1921

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by F. C. Turner against Samuel H. Lackland, individually and as executor of the last will and testament of Almira Lackland.Judgment for plaintiff, and defendant appeals.Affirmed.

Smiths Young, Leigh & Johnston, of Mobile, for appellant.

Stevens McCorvey, McLeod & Goode, of Mobile, for appellee.

SAYRE J.

Turner recovered judgment against Lackland as executor of the last will and testament of his wife, Almira Martin Lackland deceased, for the price of certain materials, sash, doors, and other "factory work," furnished to a building owned by deceased.The controlling issue was whether plaintiff had furnished his materials on the credit of Mrs. Lackland, since deceased, as he contended, or on the credit of Raub (or Raub & Co.), the contractor who was at the time engaged in constructing the building for Mrs. Lackland.As to this issue the evidence was in conflict, and the question at issue was one for jury decision.Plaintiff testified to facts from which the jury might have properly inferred that Lackland, who conducted the negotiation with plaintiff, was acting therein as the authorized agent of his wife; that he(plaintiff) informed Lackland, in effect, that Raub had no credit with him, but that, if Lackland would see that he got his money, he would deliver the materials; that Lackland said that he was going to see that Raub did not get away with him and that he would see that he(plaintiff) got his money; that he would keep it out of the contract he had with Raub.From plaintiff's testimony, stated above, the jury had a right to infer that he furnished the materials on Mrs. Lackland's credit; that the promise of deceased, made by and through her husband as her agent, was to pay her own debt in a particular way, out of a particular fund.Woodruff v. Scaife,83 Ala. 152, 3 So. 311;Aultman v. Fletcher,110 Ala. 452, 18 So. 215;Bates v. Birmingham Paint & Glass Co.,143 Ala. 198, 38 So. 845;Beitman v. Birmingham Paint & Glass Co.,185 Ala. 313, 64 So. 600.

In the brief here defendant argues that the promise of defendant's testator was to pay the debt of Raub, a promise obnoxious to the statute of frauds.We have said enough, with citation of authorities, to dispose of this contention.In addition, it may be said that the statute was not pleaded, and that, in order for the statute to be made the basis of defense, it must be specially pleaded; otherwise it is waived.Ex parte Banks, 185 Ala. 275, 64 So. 74.Numerous cases might be cited to this point.A different rule prevails in equity when the facts constituting the defense appear on the face of the bill.In such case the defense may be made by demurrer.In this connection it may be noted that parties may try their causes upon issues not formally made in the pleadings, and in such case may not shift their ground in this court, and, further, that the evidence in this cause adduced to show that plaintiff did or did not extend credit to deceased and did or did not extend credit to Raub would have been relevant and material had the statute of frauds been pleaded; but it was relevant to the issue joined, the general issue, nor does there appear on the record a single circumstance going to show that the parties treated the case in the court below as if the statute of frauds were involved.Per contra, everything goes to show that no question was made about the statute of frauds.

Another, question, subordinate to that...