McMahan v. Jacoway

• Decision Date: 31 January 1895
• Citation: 17 So. 39,105 Ala. 585
• Parties: MCMAHAN v. JACOWAY.
• Court: Alabama Supreme Court

17 So. 39

105 Ala. 585

MCMAHAN v. JACOWAY.

Supreme Court of Alabama

January 31, 1895

Appeal from city court of Bridgeport; William L. Stephens, Judge.

Action by H. J. Jacoway against W. J. McMahan. From judgment for plaintiff, defendant appeals. Affirmed.

J. E Brown, for appellant.

Martin & Bouldin, for appellee.

COLEMAN J.

The suit was upon a promissory note executed by McMahan to Joyner, and transferred by Joyner to plaintiff, Jacoway. The case was tried by the court without the intervention of a jury. Joyner was in possession of and owned an unexpired leasehold interest in a certain storehouse, beginning prior to the year 1893 and continuing through the year 1896. On the 1st of January, 1893, Joyner by parol agreement rented to McMahan the storeroom for one year for $150. McMahan took possession of the storeroom under his rental contract, and paid this rent. On the 1st of April, while McMahan was in possession under his rental contract, Joyner sold to McMahan his leasehold interest for the years 1894, 1895, and 1896 for the consideration of $290. As evidence of this sale and purchase, Joyner signed the following instrument: "For value received, I have this day and date sold my lease on the R. & Mollie McClelland storeroom in the town of Stevenson Alabama, to W. J. McMahan &amp Co.; said house being the same they now occupy. This transfer embraces the years 1894, 1895, & 1896, but does not affect the rent of the present year. This lease is recorded in the probate judge's office in Scottsboro, Alabama, in Mortgage Book 27, page 2. Stevenson, Ala., April 1st, 1893 A. P. Joyner." McMahan paid in cash on the purchase $100, and executed to Joyner one duebill, payable in merchandise, for $90, which was in part paid, and one duebill for $100, in the following words: "100. Due P. Joyner on demand the sum of one hundred dollars, for value received. April 1st, 1893. W. J. McMahan." This latter duebill was transferred to Jacoway, and is the foundation of the present suit. The defendant pleaded set-off and recoupment, claiming damages for injury done to defendant's goods which were in the store by leaks in the roof of the store, which the plea avers plaintiff agreed to repair; and, second, the statute of frauds.

The point in support of the plea of the statute of frauds is that in the agreement signed by Joyner the amount to be paid is not specified, and in the note there is nothing to show the consideration. There is nothing in the plea of the statute of frauds. The defendant was in possession at the time of his purchase, and remained in possession after his purchase. He has never been ousted, so far as the record shows. The following decisions are conclusive of the question Rhodes v. Storr, 7 Ala. 346; Washington v. McRoberts, Id. 814; Gillespie v....