Sharp v. Allgood

Decision Date16 November 1893
Citation14 So. 16,100 Ala. 183
CourtAlabama Supreme Court

Appeal from circuit court, Calhoun county; Leroy F. Box, Judge.

Action by J. P. Allgood, against J. S. Sharp as surety on a promissory note. Judgment for plaintiff. Defendant appeals. Reversed.

Upon the introduction of all the evidence, the court, among other things, instructed the jury as follows: "That if they found from the evidence that the plaintiff was not present when the note was made and signed, and had no notice that the note received of Thomas Stewart was not signed by the surety A. M. Stewart, as it purported on its face to be, at the time of delivery, and if plaintiff lent Thos. Stewart the money on the faith of all the signatures thereto being genuine, that they should give a verdict for the plaintiff." The defendant duly excepted to this portion of the court's charge. At the request of the plaintiff, the court gave the following written charge to the jury: "Unless the proof shows that the plaintiff knew of the fraud by which A. M Stewart's name was signed to the note, if the jury find that the name was forged, then the plaintiff will be entitled to a verdict." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges as asked: (1) "That if they believe the evidence they must find for the defendant;" (2) "that, if they believe from the evidence that defendant signed the note as surety upon the understanding and condition with Thomas Stewart that A. M. Stewart was also to sign the note as surety, they must find for defendant;" (3) "that if they believe A M. Stewart did not sign the note sued on, and that defendant signed the note upon condition that before its delivery A. M Stewart was to sign or had signed it, then they must find for defendant."

Cooke & Cooke, for appellant.

Caldwell & Johnston, for appellee.


It is contended for appellee that, even if the circuit court erred in the charges given and excepted to on the trial of this case, that error was healed by the ruling of the court, four days later, on the motion for a new trial. There had been two pleas interposed,-usury and a special plea of non est factum. The plea of usury was unquestionably sustained. The note sued on showed on its face that interest was to be paid at the rate of 12 1/2 per cent. Notwithstanding this, the jury allowed to the plaintiff interest on the note from its maturity up to the trial. The defendant moved for a new trial on two grounds: First, "that the verdict is contrary to the evidence;" and, second, "that the jury ignored the plea of usury, which was proven by the note itself on which the suit was brought, and allowed interest on the note which is included in the verdict." Passing on this motion, the circuit court entered the following judgment: "Came the parties by attorney, and by consent of parties the judgment heretofore rendered in this case is hereby reduced to two hundred and eighteen and 75/100 dollars, and the plaintiff is taxed with all the costs of the suit." This sum, $218.75, is the sum of the unpaid principal of the note sued on. The contention is that this corrected judgment, entered by consent, cured any errors that may have been committed on the trial, or, rather, was a consent to waive them. We do not so understand or interpret the record. The consent was not that the judgment might be rendered. It was that it might be reduced. The jury, by their verdict, had given to plaintiff $393.38. Because of this excessive amount, a new trial was moved for. The amended judgment clearly implies that, but for the deduction of the recovery, a new trial would have been granted. The presiding judge had no power to compel the plaintiff to remit a part of the verdict. He exhausted his power when he announced that he was grant a new trial unless the plaintiff made such remission. The record justifies the inference that this is precisely...

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11 cases
  • Los Angeles Shipbuilding & Drydock Corp. v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 22, 1961
    ...of judgment by an ascertainable amount. State decisions have allowed parties to reduce the amount of judgment by consent. Sharp v. Allgood, 100 Ala. 183, 14 So. 16. The federal courts have shown liberality in allowing the parties to stipulate as to the amount of a judgment. Thus, the partie......
  • Birmingham News Co. v. Moseley
    • United States
    • Alabama Supreme Court
    • March 17, 1932
    ... ... amended. McConnon & Co. v. Kirby, 211 Ala. 440, 100 ... So. 764; White Sewing Mach. Co. v. Saxon, 121 Ala ... 399, 25 So. 784; Sharp v. Allgood, 100 Ala. 183, 14 ... So. 16; Evans v. Daughtry, 84 Ala. 68, 4 So. 592; ... King v. State, 81 Ala. 92, 8 So. 159; Marks v ... First ... ...
  • W.T. Rawleigh Medical Co. v. Wilson
    • United States
    • Alabama Court of Appeals
    • December 7, 1912
    ...have an equally undoubted right to determine under what circumstances and to what extent he will bind himself." See, also, Sharp v. Allgood, 100 Ala. 183, 14 So. 16. may be the rule in other jurisdictions, under these authorities, which have never been questioned, so far as we can find, by ......
  • McCarty v. Love
    • United States
    • Mississippi Supreme Court
    • January 3, 1927
    ... ... 45, 46, 47 and part of 49; 69 Miss. 508, ... 10 So. 473, 30 A. S. R. 563; Southern Cotton Oil Co. v ... Bass (Ala), 28 So. 576; Sharp v. Allgood ... (Ala.), 14 So. 16; Lynn County v. Farish, 14 Am. Rep ... The ... liability of P. R. McCarty. The matter was never ... ...
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