Winter v. Judkins

• Decision Date: 15 May 1895
• Citation: 106 Ala. 259,17 So. 627
• Parties: WINTER ET AL. v. JUDKINS.
• Court: Alabama Supreme Court

17 So. 627

106 Ala. 259

WINTER ET AL. v. JUDKINS.

Supreme Court of Alabama

May 15, 1895

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Action of detinue by Winter & Loeb against Elias Judkins. Judgment was rendered for defendant, and plaintiffs appeal. Affirmed.

E. P Morrisett and Lomax & Ligon, for appellants.

Kirkpatrick & Macdonald, for appellee.

COLEMAN J.

The appellants, as mortgagees, sued in detinue to recover two bales of cotton and a certain number of bushels of corn. The defense relied upon was payment of the mortgage debt. The principal contention arose from the application of a check for $162, drawn by plaintiffs in favor of the defendant. The plaintiffs contended that this check was given as a partial payment upon a mortgage debt alleged to be due to one Leon Loeb from the defendant. The defendant testified that it was given in settlement of a balance due from him to the plaintiffs for the previous year, and constituted a part of the consideration of the mortgage debt under which the present action was instituted. It appears from the evidence that if the balance due from the previous year was carried into the present mortgage, and the check for $162 was applied by the defendant as a partial payment on a debt due Leon Loeb, then the mortgage had not been satisfied; but, if the balance of the previous year was paid by the check, so that the amount of the check, and the additional advancements made that year, were the entire consideration of the mortgage debt, then it seems the payments made were sufficient to satisfy and extinguish the mortgage. This was the real issue. On the trial, on cross-examination, the defendant was asked "if he did not borrow the amount of the check to pay on a mortgage debt he owed to Leon Loeb," to which the witness replied "that he had never given a mortgage to Leon Loeb." Having been shown a mortgage to Leon Loeb purporting to have been executed by the witness and his wife the witness stated that was his signature, and that he and his wife executed the mortgage, but "thought, when he signed it, that it was a renewal of one formerly executed to Winter & Loeb, the plaintiffs." The evidence tended to show that the consideration of the mortgage to Leon Loeb was in satisfaction of a debt previously owing by defendant to Winter & Loeb. The plaintiffs offered testimony tending to show that Leon Loeb had entered a credit on his mortgage of $162, the amount and date of the check. The plaintiffs offered in evidence, "in rebuttal and contradiction of the evidence of the defendant," the Loeb mortgage. Upon the objection of the defendant the mortgage was excluded, to which ruling the plaintiffs excepted. This is assigned as error. Appellants contend that it was admissible as impeaching testimony. We do not think so. The entry of credit by ...