Rarden v. Cunningham

• Decision Date: 28 February 1903
• Citation: 136 Ala. 263,34 So. 26
• Parties: RARDEN v. CUNNINGHAM.
• Court: Alabama Supreme Court

34 So. 26

136 Ala. 263

RARDEN v. CUNNINGHAM.

Supreme Court of Alabama

February 28, 1903

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

Action by T. R. Cunningham against J. W. Rarden to recover damages for the wrongful taking of one mule, one wagon, and a set of harness. The defendant pleaded the general issue, and also a special plea justifying the taking under a mortgage he held upon the property, on which defendant claimed there was a balance due when the property was taken. Charge 9, referred to in the opinion, was as follows: "I charge you gentlemen of the jury, that the mortgage carries with it from the law date of the note the interest of 8 per cent. per annum, and you must be satisfied from the evidence that plaintiff had paid the face of the note and interest then due, before it could be claimed as paid." From a judgment for plaintiff, defendant appeals. Reversed.

Pinkney Scott, for appellant.

Estes &amp Smith, for appellee.

TYSON J.

One of the material issues presented by the pleading was whether there was anything due upon the mortgage executed by plaintiff to defendant, and under which the defendant undertook to justify his taking of the property. Street v. Sinclair, 71 Ala. 110. On this issue there was conflict in the evidence. The evidence in behalf of plaintiff tended to show that he had overpaid the mortgage debt before the alleged trespass was committed, while that offered in behalf of defendant tended to show that he had not, and that there was something due upon the mortgage. It was without dispute that on the next day after the taking of the property by defendant the plaintiff went to the place of business of defendant, and, after an accounting, the mortgage was surrendered to the plaintiff after having had indorsed on it the following words, "Paid in full, as shown by receipts produced," and also the dates and amounts of the receipts. This indorsement, and the receipts mentioned in it were not conclusive upon defendant, but were clearly open to explanation, modification, or contradiction by parol evidence. 1 Brick. Dig. 860, §§ 809-10; Gravlee v Lampkin, 120 Ala. 210, 24 So. 756. It was, therefore, clearly competent for the defendant on cross-examination of plaintiff to ask him if he had paid the interest on the mortgage debt. Upon the same principle he had the right to show by the witness Scott that plaintiff was not entitled to one of the credits claimed by him, although it was indorsed upon the mortgage and evidenced by a receipt. Nor did the accounting resulting in the indorsement, above quoted, being placed upon the mortgage, and a surrender of that paper to plaintiff, preclude the defendant from showing that there was a mistake in allowing the credits claimed by the plaintiff, or from showing that the item of interest which he was entitled to upon the mortgage debt was, by mistake, not taken into consideration in the accounting. The transaction involved no more than a statement of the account between the parties and the striking of a balance, to which both agreed. As to what that balance was, and whether in favor of the plaintiff or defendant, the evidence was in conflict; the plaintiff's evidence tending to show that it was in his favor, while that adduced in behalf of defendant that it was in his. If it had been shown without dispute that the balance struck was in plaintiff's favor, we apprehend that this fact would not be entitled to any greater probative force than it would be had the action been brought by plaintiff against defendant to recover a balance due to him upon a stated account. And, had such been the action, the balance shown would have been only prima facie correct, subject to impeachment or falsification in whole or in part. Ware v. Manning, 86 Ala. 238, 5 So. 682; Rice v. Schloss, 90 Ala. 416, 7 So. 802; Sloan v. Guice, 77 Ala. 394. If plaintiff had the receipts in court, he should have been...