Appeal
from Circuit Court, Marengo County; Benj. F. Elmore, Judge.
Action
in assumpsit by Bley Brothers, against W.M. Spencer. From a
judgment for plaintiffs, defendant appeals.
Reversed
and remanded.
In suit
on notes, rejection of testimony relating to interviews
between parties thereto prior to their execution, where
witness was unable to give dates of such interviews without
reference to documents to refresh his memory, held error
since witness had right to refresh memory from document shown
him in court.
Defendant
filed the following plea: "Plea (b): That the parties in
this cause have effected a compromise and settlement of all
their controversies involved in this suit at the time and
place and under the circumstances and conditions as follows
On the 16th day of October, 1933, at the place of business of
plaintiffs at Demopolis, Alabama, Isidore Bley, acting for
and on behalf of the plaintiffs and being thereunto duly
authorized, and the defendant acting and being represented by
W.M. Spencer, Jr., the duly authorized and empowered agent
and attorney in fact of the defendant, it being stated as a
prelude to said agreement that W.M. Spencer, the defendant in
the above mentioned case, denied any liability on the cause
of action made by the complaint in this case and that the
said W.M. Spencer, the defendant, was the holder and owner of
a certain promissory waive note dated the 24th day of
November, 1920, executed by the said Isidore Bley, one of the
members of the plaintiffs' partnership, payable to the
order of H.A. Feibleman for the principal sum of $3500.00
and the said Isidore Bley further claimed that the defendant,
W.M. Spencer, in addition to the amount claimed in this cause
of action, owed said plaintiff the sum of $503.86, thereupon
at said time and place, to-wit: on the 16th day of October,
1933, at the place of business of the plaintiffs at
Demopolis, Alabama, the said parties, represented as above
stated, made and entered into an agreement of compromise and
settlement of the controversies involved in the cause of
action stated by the complaint in this cause. The said
parties exchanged mutual promises of performance of their
respective parts of said compromise and settlement, which was
as follows: That the defendant was the holder and owner of a
certain promissory waive note dated the 24th day of November,
1920, executed by the said Isidore Bley, one of the members
of the plaintiffs' partnership, payable to the order of
H.A. Feibleman for the sum of $3500.00, on which there has
been a payment of the sum of $1,000.00, and there was
accumulated interest due on said note on the 16th day of
October, 1933, amounting to approximately $1500.00, the total
principal and interest due on said promissory note being
approximately $4,000.00, and that the said Isidore Bley,
acting as above stated, claimed
the defendant W.M. Spencer owed said plaintiffs in addition
to the notes sued on, the further and additional sum of
$503.86, and it was further agreed by the said parties at the
time and place above mentioned, to wit: October 16, 1933, at
the place of business of said Bley Brothers, and the parties
thereto exchanging mutual promises of performance of this
agreement on their respective parts, that the said note
executed by the said Isidore Bley, as above stated, and held
by the defendant, W.M. Spencer, be reduced to the sum of
$1246.14, and that this amount should be the total balance
due on said note of said Isidore Bley above mentioned and
described, including all interest and other charges to that
date, and in consideration of said reduction in said note of
Isidore Bley held by defendant as aforesaid, that the amount
claimed in the complaint in this cause would be fully paid
and satisfied and this cause dismissed at cost of plaintiff,
and that said account amounting to $503.86, would be paid and
cancelled; and, defendant avers that said note of Isidore
Bley has been reduced to $1246.14 in accordance with said
agreement. Wherefore defendant further avers that this cause
has been compromised and settled, and that plaintiffs should
not be permitted further to prosecute the same."
BOULDIN
Justice.
Counts
1 and 2 of the complaint read:
"1.
The plaintiffs claim of the defendants $1,000.00, due by
promissory note made by the said Spencer & Powers (a
partnership composed of W.M. Spencer and A.L. Powers) and
A.L. Powers on to-wit: November 20, 1930, and payable to
the said Bley Bros. (a partnership composed of Isidore Bley
and George Bley) on December 15, 1930, with interest
thereon from its date.
"2.
The plaintiffs claim of the defendants $220.48, due by
promissory note made by the said Spencer & Powers (a
partnership composed of W.M. Spencer and A.L. Powers) and
A.L. Powers on to-wit: April 25, 1931, and payable to the
said Bley Bros. (a partnership composed of Isidore Bley and
George Bley) on May 1, 1931, with interest from Jan. 1,
1931."
Count 3
claimed attorney's fees stipulated in the notes.
Defendant
Powers having died pending the suit, the cause proceeded
against defendant Spencer.
Pleas a
and b were sworn pleas setting up accord and satisfaction
pending the suit. The trial court sustained demurrers
thereto. This ruling is urged as reversible error. Plea b,
the more complete in one aspect, appears in the report of the
case.
Among
the grounds of demurrer assigned is failure to aver a
"bona fide" dispute as to the liability of Spencer
on these notes. He had, theretofore, filed sworn pleas of non
est factum, on which the cause was later tried.
While a
bona fide dispute as to liability on an alleged note for the
payment of money, or the amount due, must appear in evidence,
as a consideration for accord and satisfaction, no written
release being given, it is not necessary to aver in the plea
that the dispute was bona fide. Ex parte Southern Cotton Oil
Co., 207 Ala. 704, 93 So. 662, Headnote 2.
The
plea very clearly discloses the effort of one member of
plaintiff firm to apply firm property or assets to the
satisfaction pro tanto of his individual debt. This he is
without authority to do without the consent of the other
partner. Having no implied authority to thus convert
partnership funds, the other party, being charged with notice
of such lack of authority, has the burden to...
