Penney v. McCauley

• Decision Date: 19 December 1911
• Citation: 3 Ala.App. 497,57 So. 510
• Parties: PENNEY v. MCCAULEY.
• Court: Alabama Court of Appeals

57 So. 510

3 Ala.App. 497

PENNEY v. MCCAULEY.

Court of Appeals of Alabama

December 19, 1911

Rehearing Denied Jan. 30, 1912.

Appeal from Circuit Court, Morgan County; Marvin West, Special Judge.

Action by Charles S. McCauley against J. E. Penney on a duebill. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The witness Kent was examined by interrogatories, and objection was interposed to the fourth cross-interrogatory "Isn't it a fact that Charles S. McCauley asked you in the presence of Thomas L. Jones, and also in the presence of A. E. Martin, in the city of Huntsville, Ala., on or about the 6th day of October, 1909, to state, if you remembered, a conversation between him and J. E. Penney in the year 1903 and that you failed or refused to state, in the presence of either of them, anything about the matter?" Counsel also objected to that portion of interrogatory 1 on the cross concluding as follows: "Or that in substance the interrogatory being, was it not a fact that on a certain day the witness stated to McCauley, in the city of Huntsville that it was so long ago that the witness had no recollection of what was said in any conversation between McCauley and Penney in 1903."

The following charges were refused to the appellant: (4) "In weighing the evidence of the witness McCauley, you may consider his demeanor upon the stand, together with what he has to say as a witness; and if, after considering all the evidence, you find that he is contradicted as to material matters in the case by other evidence, and that he has sworn to any one material fact in the case falsely, and that this was willfully done by him, then, if you see proper so to do, you can disregard his entire evidence in this case." (3) "As a circumstance to which you may look in determining whether defendant agreed with plaintiff to let him have the farm, as is alleged in plea 4 and 5 filed in this cause, you may look to the fact, if it be a fact, that plaintiff collected rents from some of the tenants for the year 1903." (B) "I charge you that, in considering the weight which you will give to Thomas Kent's testimony, you can look to the fact, if it be a fact, that he was not interested in the result of this case."

The court, at the request of plaintiff, gave the following charges: (1) "The burden of proving that the duebill has been paid is upon Penney." (2) "That the meaning of the duebill itself was that, while the rents of the entire McCauley place were pledged to McCauley as security merely for the payment of the amount called for by the duebill, yet those rents were not to constitute any payment on the duebill until and unless collected by McCauley."

Kyle & Hutson, for appellant.

E. W. Godbey, for appellee.

PELHAM J.

A duebill, given by the appellant to the appellee, is the foundation of the suit brought in the trial court. Appellee having declared on the duebill, the appellant pleaded the general issue, payment, and two special pleas, setting up a subsequent and separate agreement in satisfaction and settlement of the claim...