Orr v. Stewart

• Decision Date: 03 June 1915
• Docket Number: 328
• Citation: 13 Ala.App. 542,69 So. 649
• Parties: ORR et al. v. STEWART.
• Court: Alabama Court of Appeals

69 So. 649

13 Ala.App. 542

ORR et al. v. STEWART.

No. 328

Court of Appeals of Alabama

June 3, 1915

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Assumpsit by S.E. Stewart against Mrs. Lattie Orr and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Troup & Nix, of New Decatur, and E.W. Godbey of Decatur, for appellants.

Tidwell & Sample, of New Decatur, for appellee.

BROWN J.

There are but two litigated questions in this case: First, whether the note and mortgage of October 1, 1909, for $726.18, given by D.W. Orr to the plaintiff, was paid by D.W. Orr in his lifetime; and, if not, whether the note sued on was given by the defendant and accepted by the plaintiff in payment of the indebtedness due from D.W. Orr to the plaintiff at the time of Orr's death.

It seems to be conceded by the parties that, if the note was paid by D.W. Orr in his lifetime, then the indebtedness was paid in full before the note in suit was given. The defendants disavow any personal knowledge as to whether the indebtedness represented by the said note and mortgage had been paid by D.W. Orr previous to his death, but produce the note and offer it in evidence and introduce proof tending to show that the identical paper was found among the papers of her deceased husband by Mrs. Orr a short time after his death, and before the note sued on was executed, and not until after the execution of the note in suit to close the account against her deceased husband's estate did Mrs Orr discover that the amount of this note and mortgage found in the papers was charged in the account. If these phases of the evidence were believed by the jury, then the law raises a presumption, disputable of course by countervailing evidence, that the debt was paid by Orr before his death. Jones on Ev. §§ 49, 57. To rebut this presumption the plaintiff was allowed to offer proof tending to show that the note was in the possession of the plaintiff after the death of Orr, and also to testify in his own behalf, over the objection of the defendants, that the note was not paid in full by Orr in his lifetime.

The objection urged was that the plaintiff was disqualified to testify as to a transaction with Orr, the deceased, under the provisions of section 4007 of the Code. The estate of Orr is not directly interested in the result of this suit, and, as to the transaction under investigation, it is not shown that Orr, the deceased, acted in a representative or fiduciary relation to the defendants, nor is the title of any property derived from the deceased or his estate involved. Therefore the case is not brought within the rule of exclusion, and the objection was properly overruled. Gamble v. Whited, 94 Ala. 335, 11 So. 293; Butler v. Jones, 80 Ala. 436, 2 So. 300; Nelson v. Howison, 122 Ala. 578, 25 South. 211; Howle v. Edwards, 97 Ala. 649, 11 So. 748; Dismukes v. Tolson, 67 Ala. 386; Philips v. Morris, 169 Ala. 460, 53 So. 1001; Snellgrove v. Evans, 165 Ala. 322, 51 So. 560.

Mrs. Orr testified that she found this note for $726.18, and produced the note on the trial and identified it as the note she found. Therefore we do not see how the fact that Orr, the deceased, on other occasions previous to his death, had executed notes of like import, but in different amounts, and that such notes were surrendered to him on payment thereof, could be relevant to the issue in this case. If there had been any dispute as to the identity of the note the defendant had found among her husband's papers, a different question would be presented, but where, as in this case, the witness positively identified the note, the only question is whether the jury will accept that testimony as true. However, the only objection urged against the testimony of the plaintiff while testifying as a witness in this respect was that it related to a transaction with a deceased person whose estate is interested in the suit, and which, as we have shown, was not tenable. This was a waiver of all other grounds, and the court did not err in overruling the ground assigned. A. G.S.R.R. Co. v. Bailey, 112 Ala. 167, 20 So. 313; Sharp v. Hall, 86 Ala. 110, 5 So. 497, 11 Am.St.Rep. 28; McDaniel v. State, 97 Ala. 14, 12 So. 241; Reid v. State, 168 Ala. 123. ^[1]

The court seems to have followed the rule announced in Birmingham R., L. & P. Co. v. Seaborn, 168 Ala. 658, 53 So. 243, and other cases, and after the witness Jackson on cross-examination testified that his recollection as to the facts had not been refreshed by the memorandum made on the books of the bank, and that his statements given in evidence were his conclusions from the memorandum he had made, on motion of the defendant excluded all his evidence except that identifying the several memoranda, leaving before the jury only the evidence identifying the memoranda and the memoranda; but subsequent to this ruling the witness, on being further examined by plaintiff's counsel, testified that, in his best judgment, the note was in the bank until November, 1909, and after this statement was made the defendant moved to exclude it on the ground that it was a mere conclusion of the witness. So far as the record shows, no objection was made to the question calling for this testimony, and the judgment of the trial court will not be reversed for overruling this motion. A party cannot speculate on what the answer to a question will be, and then have the answer excluded. Rutledge v. Rowland, 161 Ala. 123, 49 So. 114; Creel v. Keith, 148 Ala. 235, 41 So. 780. The question calling for this answer is not set out in the record, but to avoid the application of the rule above stated it is incumbent upon the appellant to show either that objection was made to the question calling for the testimony, or that the statement was gratuitous. Supreme Court Rule 45 (175 Ala. xxi, 61 South. ix).

The fact that Jackson had previously given testimony to the effect that he had no recollection about seeing the note at the time the memorandum was made showing an extension of the time of payment of the loan from the bank to the plaintiff would not justify the exclusion of his subsequent statement that, to the best of his recollection, he saw the note at the time of this transaction. It was for the jury to reconcile this seeming conflict in the evidence. It is not impossible that the recollection of the witness could have been refreshed and revived as a result of the examination he was subjected to, and it is always permissible for a witness to testify according to his recollection. Reid v. State, 168 Ala. 123, 53 So. 254. [6] After plaintiff's witness Foote testified that he was the plaintiff's bookkeeper in 1909, and that he "delivered the old note for $726.18 due October 1,...