Penney v. Grant

• Decision Date: 07 May 1918
• Docket Number: 6 Div. 205
• Citation: 79 So. 271,16 Ala.App. 510
• Parties: PENNEY v. GRANT.
• Court: Alabama Court of Appeals

79 So. 271

16 Ala.App. 510

PENNEY v. GRANT.

6 Div. 205

Court of Appeals of Alabama

May 7, 1918

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Assumpsit on account by J.A. Grant against J.E. Penney. Judgment for plaintiff, and defendant appeals. Affirmed.

Erle Pettus, of Birmingham, for appellant.

Murphree & Richardson, of Birmingham, for appellee.

SAMFORD J.

Charge 5, as requested by defendant, was argumentative, and gave undue prominence to a particular fact, and for these reasons was properly refused. Gilmore v. State, 126 Ala. 21 28 So. 595; Brantley v. State, 91 Ala. 47, 8 So 816.

The second, third, fourth, fifth, and sixth assignments of error are based upon the court's refusal to give, at the request of defendant, the general affirmative charge.

The basis of this suit is an account between the parties extending over a series of years. This account contains over 500 items of debit and many items of credit, as shown by the book of the plaintiff, which the testimony of plaintiff tends to show is correct, except as to certain items of credit which were admitted on the trial. The defendant introduced many checks and drafts, some of which did not appear on the books of the plaintiff, but plaintiff denied that defendant was entitled to these, except as above noted, and explained that these checks and drafts were cash items that never became a part of the account. In the absence of testimony by the plaintiff denying these checks and drafts as credits, the presumption would have been that they were so paid, but plaintiff denied that they were paid as credits, and it therefore became a question for the jury. White v. Bean &amp Co., 77 So. 924; 5 R.C.L. 486. The evidence was in conflict, and the affirmative charges were properly refused. There was also evidence which, if believed, tended to support the count on account stated.

The seventh assignment of error is based upon the court's refusal to give at the request of defendant charge 14, in the following language:

"If you believe the evidence in this case, you must find the defendant entitled to the credits authorized by the plaintiff over the latter's signature in the memorandum under date November 19, 1915, which has been offered in evidence."

This charge was based upon a written statement signed by plaintiff in the following words:

"Comer, Ala., Nov. 19, 1913.

"Below is a list of credits Mr. Penney is entitled to, which I do not think is credited on a/c now:

"Collected of Ike Bowen rent ....... $100.00

"Last year ........................... 50.00

"Collected 2 bales of Alex Banks.

"Collected 1 bale of Mr. Cass.

"All above was for 1912 and 1913.

"J.A. Grant."

The plaintiff in his testimony denied receiving the cotton from Banks and the $50 from Bowen. The most that could be said for the memorandum is that it is a receipt, and that under section 3973 of the Code it must have effect according to the intent of the parties, but the statute does not change its probative force, and the rules of evidence in ascertaining the intention of the parties are the same as they were before the statute. Stegall v. Wright, 143 Ala. 204, 38 So. 844. And, when a receipt is given under a mistake of fact, it may be avoided. Cleere v. Cleere, 82 Ala. 581, 3 So. 107, 60 Am.Rep. 750; Haynes v. Wheat & Fennell, 9 Ala. 239. Therefore, when the plaintiff testified that he did not receive the cotton and the $50 on the account, it became a question for the jury to say whether the receipt was given under a mistake of fact, and therefore charge No. 14 as requested by defendant was property refused.

Charge 15 was as follows:

"It was the duty of the plaintiff to allow defendant credit for every amount paid plaintiff by defendant or for latter's benefit."

There was much evidence of many other transactions between the parties involving the payment of money, and therefore, unless a payment was made by the defendant or for his benefit on the account, he would not be entitled to a credit in this action.

The ninth assignment of error is based upon the refusal of the court to set aside the verdict and to grant a new trial, it being insisted that the verdict is contrary to the evidence and that ...