McDaniel v. Sullivan & Bramlett

• Decision Date: 30 June 1905
• Citation: 39 So. 355,144 Ala. 583
• Parties: MCDANIEL v. SULLIVAN & BRAMLETT.
• Court: Alabama Supreme Court

39 So. 355

144 Ala. 583

MCDANIEL v. SULLIVAN & BRAMLETT.

Supreme Court of Alabama

June 30, 1905

Appeal from City Court of Gadsden; Jno. H. Disque, Judge.

"To be officially reported."

Action by Sullivan & Bramlett against J. A. McDaniel. From a judgment for plaintiffs, defendant appeals. Reversed.

The action was based on a mortgage embracing the mule in suit and two others. The defendant filed seven pleas; the two first being the general issue, the third a denial of title in the plaintiffs, and the fourth setting up that the suit was based on the mortgage, which was given to secure the purchase money for the two mules other than the one in suit, and that the plaintiff had warranted the two mules, and setting up a breach of the warranty. The fifth plea was to similar effect setting up misrepresentations of plaintiff made to induce the defendant to purchase said mules. The sixth and seventh pleas followed the fifth and sixth, but asking judgment against the plaintiff for the excess of damages over the debt secured by the mortgage. Demurrers were sustained to all except the first and second pleas. Upon the trial the plaintiffs introduced the mortgage, the basis of the suit, executed by the defendant and covering three mules; one being the mule described in the complaint. They also introduced in evidence the note described in the mortgage, and also another note similar in all respects, except that it was payable six instead of three, months after date. One of the plaintiffs testified as a witness that the consideration of the two notes was the purchase money for the two mules not in the complaint; that the defendant owned the mule sued for, and put him in the mortgage as additional security for the debt that the plaintiffs had taken possession of and sold the mules not sued for, and applied the proceeds to the debt, after deducting the costs of keeping them until he found a purchaser and an attorney's fee for advice in the premises.

Dortch, Martin & Allen, for appellant.

Culli & Martin, for appellees.

ANDERSON J.

Section 1478 of the Code of 1896 is as follows: "The defendant in any action under the provisions of this chapter brought by a mortgagee or by a vendor in a contract of conditional sale or by their assignee, in addition to any defense appropriate to the action of detinue, may plead any matter of defense that he might have pleaded if the action had been on the debt, except the...