Ragsdale v. Gresham

• Decision Date: 21 July 1904
• Citation: 37 So. 367,141 Ala. 308
• Parties: RAGSDALE v. GRESHAM.
• Court: Alabama Supreme Court

37 So. 367

141 Ala. 308

RAGSDALE v. GRESHAM.

Supreme Court of Alabama

July 21, 1904

Appeal from City Court of Bessemer; B. C. Jones, Judge.

Action by M. C. Ragsdale against H. K. Gresham. From a judgment in favor of defendant, plaintiff appeals. Reversed.

There were six counts in the complaint, the first five being common counts for money had and received, etc. These require no notice, as none of the questions raised relate to them. The sixth count, filed the 12th of March, 1903, was as follows "And plaintiff further claims of defendant the sum of fifty-eight and 95/100 dollars, due on an order issued by J M. Anderson on the 19th of September, 1902, as follows 'Mr. H. K. Gresham. Dear sir: Please pay to M. C Ragsdale, Nineteen and 65/100 dollars on the 1st day of November, 1st day of December and 1st day of January after date, dated Sept. 19, 1902;' and plaintiff avers the defendant accepted said order on the 19th day of September 1902, which sum, with interest, is now due and unpaid." The defendant pleaded the general issue and three special pleas, which were as follows: "(3) That there is no consideration for the order upon which said cause of action was founded. (4) That said order upon which said cause of action was founded is void under the statute of frauds, for it was an agreement or promise to answer for the debt default, or miscarriage of another, and which is not in writing expressing the consideration therefor. (5) That the acceptance of the order set out in the plaintiff's complaint, by the defendant, was a promise to answer for the debt, default, or miscarriage of another, which is not in writing expressing the consideration therefor, and is, therefore, void under the statute of frauds." The plaintiff demurred to each of these special pleas upon the grounds that it is not averred that the order was given to pay any one's debt except the defendant's; that they were no answer to the complaint; and that it was not averred in what way or under what circumstances the order is wanting in consideration. Each of the demurrers was overruled. The plaintiff introduced in evidence the order which was copied in the sixth count of the complaint, and then, as a witness in his own behalf, testified that Anderson was indebted to him for having paid a note which he had indorsed for Anderson, and which, upon Anderson's failure to pay it to the plaintiff, he did; and that the order sued upon was given to him by Anderson in payment of Anderson's indebtedness to him by reason of having paid said note. The defendant testified that he had rented a sawmill from J. M. Anderson, the drawer of said order, and was to pay him $45 per month for the rent of the same; that the order was drawn and given by Anderson to pay the plaintiff--whom Anderson owed--money which was to become due for the rent of the sawmill, and defendant accepted said order when it was presented to him by plaintiff; that he (the defendant) operated the sawmill for a few days after he accepted the order, when one J. W. Rarden, who had a mortgage on the mill from Anderson to him, took from defendant the possession of the mill, and then and there rented it back to defendant on the same terms and conditions that he (the defendant) had been operating it under his contract with Anderson, and defendant ran it on under this agreement with Rarden. He testified on the cross that he owed Anderson a small balance on the previous month's rent at the time he accepted the order; that when he operated the mill under Anderson he had a written lease from him, by the terms of which he rented the mill from May 1, 1902, to January 1, 1903, at $45 per month, due and payable at the 1st of each month; that Anderson told him a few days after he accepted said order, not to pay it, as he had sold the mill to Mr. Rarden to pay off a mortgage he held on the mill; that he accepted the order as shown by it, and that he never paid anything thereon, and that plaintiff demanded its payment before he commenced this suit. J. W. Rarden testified that he had a mortgage on the mill, due and payable before the date of the lease contract between defendant and Anderson; that after he heard of the same he went to see Anderson about it, and told him he intended to foreclose his mortgage, and take possession of the mill, and Anderson then and there sold him the mill to avoid foreclosure of the mortgage and in payment of the mortgage debt; that he then went to the mill to see the defendant, and then and there took possession and rented the property to defendant for $45 per month; that defendant ran the mill until some time in December, when he (witness) sold it to some other parties; and that as soon as he heard that Anderson had drawn said order in favor of plaintiff he went and closed the matter out and rented it to defendant. As this evidence was being introduced in answer to questions by defendant, the plaintiff objected on the grounds that it was illegal, irrelevant, and immaterial, and was evidence of the acts of a third person, not a party to the suit, and moved to exclude it on the same grounds; but the court overruled said several objections, and plaintiff reserved an exception in each instance. The plaintiff requested the court to give the general affirmative charge in his favor, and duly...