Lynn v. Bean

• Decision Date: 04 October 1904
• Citation: 141 Ala. 236,37 So. 515
• Parties: LYNN v. BEAN.
• Court: Alabama Supreme Court

37 So. 515

141 Ala. 236

LYNN v. BEAN.

Supreme Court of Alabama

October 4, 1904

Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.

Action by J. F. Bean against L. M. Lynn. Judgment for plaintiff. Defendant appeals. Affirmed.

The complaint contained but one count, which was in words and figures as follows: "The plaintiff claims of the defendant two hundred dollars ($200) due from defendant to plaintiff, because defendant failed to enter on the margin of the record of a mortgage executed on April 11, 1900, by plaintiff to defendant, which mortgage was recorded in the office of the judge of probate of Morgan county, Alabama, a partial payment of twenty-three dollars and fifty cents ($23.50), which plaintiff had made to defendant, and defendant so failed to enter such partial payment for thirty days after plaintiff had in writing requested defendant to make such entry." To the complaint the defendant demurred upon the following grounds: "(1) The complaint fails to aver that plaintiff requested the defendant to enter the date of said partial payment on the record of said mortgage. (2) It fails to aver that plaintiff requested the defendant to enter the date and amount of the alleged partial payment on the record of the mortgage. (3) Said complaint does not show that plaintiff ever gave the defendant a legal and sufficient request to make the required entry on the said mortgage." This demurrer was overruled. Thereupon the defendant filed the following pleas: "(1) The allegations of said complaint are untrue. (2) That at the time the request was made on defendant to enter said partial payment on the margin of the record the mortgage indebtedness had been fully paid or satisfied. (3) That said payment of $23.50 was made on an open account which the plaintiff was then due and owing to the defendant for which the defendant gave plaintiff credit, and also a receipt to this effect which receipt was accepted by the plaintiff. (4) That the said partial payment of $23.50 was never made by plaintiff upon the mortgage referred to in the complaint."

The plaintiff demurred to the second special plea upon the following grounds: "(1) It neither denies or avers and avoids the allegations of the complaint. (2) It is immaterial whether the mortgage had or had not been wholly satisfied at the time of the request for entry of partial payment. (3) Said plea presents no material issue." This demurrer to the special plea was overruled. The judgment recites that upon motion of the plaintiff the pleas Nos. 3 and 4 were stricken from the file, but neither the motion nor the ruling thereon is shown in the bill of exceptions, nor is the motion shown in the record. The plaintiff, as a witness in his own behalf, testified that on April 11, 1900, he executed and delivered to the defendant a certain chattel mortgage on his crop to be grown during the year 1900, which was given to secure an indebtedness of $45. This mortgage was introduced in evidence. The plaintiff then introduced in evidence the record of said mortgage as found in the record book in the office of the judge of probate of Morgan county, which showed that there had been no entry of any partial payment on the margin of said record where the said mortgage was recorded. The plaintiff then offered in evidence the following written notice: "Mr. L. M. Lynn--You are hereby requested to place a credit of twenty-three dollars and fifty cents ($23.50) on the margin of the record of mortgage that I gave you in 1900, this February 11/1902. [ Signed] J. F Bean." To the introduction of this written notice, the defendant objected because it was ambiguous, indefinite, was insufficient, and because said notice did not request the defendant to enter the date of the alleged partial payment. The court overruled this objection, and to this ruling the defendant duly excepted.

The plaintiff then testified that he sent this notice to the defendant by his son, W. F. Bean. The plaintiff further testified that on April 5, 1901, he paid defendant $23.50 and directed him to credit said payment on the said chattel mortgage, which was introduced in evidence; that at the time of making said payment, however, the defendant gave the plaintiff a receipt for the $23.50, reciting that said sum was paid on the book account; that thereupon the witness informed the defendant that the money was paid on said mortgage, and that while he retained the receipt, he did not agree to the payment being applied to the book account. The plaintiff further testified that he owed the defendant a balance due upon the mortgage given upon certain lands three or four years prior to the mortgage he gave in 1900, but that the 1900 mortgage was not given to better secure the mortgage on the land, and further that he did not have an agreement with the defendant in October, 1900, to the effect that the 1900 mortgage was satisfied. The plaintiff then testified that the entry of the payment of $23.50 was not made on the record of the 1900 mortgage when this suit was commenced.

William F. Bean, the son of the plaintiff, was introduced as a witness, and testified that he was present when the plaintiff paid the defendant $23.50, and his testimony corroborated the testimony of his father as to said money being paid as a credit upon the 1900 mortgage. This witness further testified that he delivered on February 11, 1900, the written notice from his father to the defendant, requesting the latter to enter the partial payment on the record of the mortgage. This witness was then asked by the defendant the question which is copied in the opinion, to which question the plaintiff objected upon the ground that the defendant could not make evidence for himself in this way. The court sustained the objection, and the defendant duly excepted.

The defendant and his son, as witnesses, testified that the 1900 mortgage was given to better secure the payment of another indebtedness secured by a mortgage upon the plaintiff's lands. The defendant offered to introduce in evidence the following marginal entry appearing on the margin of the record of the mortgage given by the plaintiff to the defendant in 1900: "This mortgage is satisfied," dated March 20, 1902, signed, "L. M. Lynn. [ L S.]" The plaintiff objected to the introduction of this evidence upon the ground that it was made after the institution of the suit. The court sustained the objection and the defendant duly excepted. The other facts of the case are sufficiently shown in the opinion.

At the request of the plaintiff, the court gave to the jury the following written charges: "(1) If Bean owed Lynn both a book account and the mortgage debt, Bean had a right to have the payment of $23.50 applied to either debt he chose, and if in fact he directed Lynn to credit the payment of $23.50 on the mortgage debt, when he made the payment, Lynn had no right to apply it to the book account. (2) The burden rests on the defendant to show to your reasonable satisfaction by the preponderance of the evidence, that his plea that the mortgage was wholly paid before notice was given is true, and if defendant has failed to discharge that burden, you must find for the plaintiff as to the issues presented by that plea. (3) Gentlemen, I charge you that if Bean and Lynn merely made an oral agreement that the mortgage in this case should be regarded as canceled, and there was no valuable consideration for that agreement, then that agreement did not operate as a payment or satisfaction of the mortgage, and if the only evidence in the case of satisfaction of the mortgage is the evidence of that agreement, you should find for the plaintiff as to the issue presented by defendant's second plea. (4) The receipt for $23.50 is not conclusive that the payment was directed to be made on the book account. If you believe from the evidence that Bean did not...