Phillips v. Americus Guano Co.

• Decision Date: 11 June 1895
• Citation: 18 So. 104,110 Ala. 521
• Parties: PHILLIPS ET AL. v. AMERICUS GUANO CO.
• Court: Alabama Supreme Court

18 So. 104

110 Ala. 521

PHILLIPS ET AL. v. AMERICUS GUANO CO.

Supreme Court of Alabama

June 11, 1895

Appeal from circuit court, Henry county; J. M. Carmichael, Judge.

Action by the Americus Guano Company against William Phillips and others on a note. Judgment was rendered for plaintiff, and defendants appeal. Reversed.

The instrument introduced in evidence in support of the complaint was a bond, or instrument under seal. Defendants assign as error, among other things, the refusal of the court to give at their request, the general affirmative charge in their behalf.

The authorities cited on appellants' brief to the proposition that there was a fatal variance between the complaint and the proof in support thereof are as follows: Harold v. Jones (Ala.) 11 South, 747; Wilkinson v. King, 81 Ala. 156, 8 So. 189; Railroad Co. v. Winn, 93 Ala 306, 9 So. 509; Railroad Co. v. Thomas, 83 Ala. 343 3 So. 802; Railroad Co. v. Grabfelder, 83 Ala. 201 3 So. 432; Kennedy v. Railroad Co., 74 Ala. 430; Dunton v. Keel, 95 Ala. 159, 10 So. 333.

T. W. Espy, for appellants.

P. A. McDaniel, for appellee.

HEAD J.

The plaintiff (appellee) declared upon a promissory note. The instrument introduced in support of the complaint is a specialty. There is no plea of the general issue set out in the record, but the judgment entry recites that issue was joined upon the plea of the general issue and the defendants' special pleas. It must therefore be so taken. This being the case, the variance was fatal, and defendants were entitled to the general charge requested by them, and which the court refused. See authorities on brief for appellants.

As the plaintiff made out no case, the cause is not in a condition that we can properly pass on the other questions presented by the record. We remark, however, that, the written order sent by Gamble to the plaintiff for the fertilizer being in its possession, in order to get the benefit of it the plaintiff should have produced the writing, or accounted for its nonproduction. Without accounting for its absence, secondary evidence of its contents was inadmissible; and this without regard to whether defendants gave plaintiff notice to produce it or not.

There were four questions presented under the special pleas, viz Under the first plea, whether Gamble sold the fertilizer to defendants, and, if so, whether he had license to sell commercial fertilizer; under the second plea,...