Woodall v. Malone-Harrison Motor Co.

• Decision Date: 11 April 1929
• Docket Number: 4 Div. 417.
• Parties: WOODALL ET AL. v. MALONE-HARRISON MOTOR CO.
• Court: Alabama Supreme Court

122 So. 357

219 Ala. 366

WOODALL ET AL. v. MALONE-HARRISON MOTOR CO.

4 Div. 417.

Supreme Court of Alabama

April 11, 1929

Rehearing Denied May 23, 1929.

Appeal from Circuit Court, Dale County; J. S. Williams, Judge.

Action in detinue by the Malone-Harrison Motor Company against S. B Woodall and C. W. Woodall, partners under the firm name of Woodall Bros. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Sollie & Sollie, of Ozark, for appellants.

J Norton Mullins, of Dothan, for appellee.

FOSTER J.

Appellee sued appellants in detinue under the statute for machinery sold. Defendants suggested a mortgage as the basis of plaintiff's claim, and pleaded specially numerous matters affecting the amount of the debt, claiming that there was nothing due on it.

The evidence tends to show that there was a mortgage given for the purchase price of the machinery, and that after it became due, a controversy arose between the parties, and they finally adjusted their differences by a compromise agreement written on the mortgage itself. In offering evidence of the amount of the indebtedness, appellee, plaintiff in the circuit court, made proof of the services of its attorney in the prosecution of this case, and a reasonable amount for such services. Appellants duly objected to all such evidence on the grounds as stated in the bill of exceptions, as follows: "That the instrument, the foundation of plaintiff's title, upon which, in part, it predicates its right of recovery, is in evidence before the court and jury that said instrument does not provide for the payment of an attorney's fee, for said services of attorneys, in bringing and prosecuting this suit, as a part of the indebtedness or obligation evidenced or secured by said instrument; and that, therefore, the value of the services of attorneys for plaintiff, rendered in bringing and prosecuting this suit, do not constitute part of the obligation imposed upon defendants by said instruments; and are not and cannot be made a part of the indebtedness from defendants to plaintiff under said instrument."

In making objection to further evidence of such nature appellants assigned as a ground the following: "4. The instrument, the foundation of plaintiff's title to the property named in the question, is in evidence; and does not provide for the payment by defendants to plaintiff of the value of the services of plaintiff's attorney in bringing and prosecuting this suit." The court overruled the objections, and appellants excepted.

Appellants here insist that nowhere in the record does it appear that a mortgage or other such instrument making provision for attorney's fees was offered in evidence or set out in the record. We find frequent mention made of such instrument in the examination of witnesses by counsel on both sides, and the court in oral charge referred to such mortgage and the written compromise agreement indorsed on it. We think the record shows that if such instrument was not formally introduced in evidence, it was so treated by both parties, and the court. Particularly is this contention of appellants not available in this connection, since their objection to this evidence was based upon a construction of the mortgage, alleged in such objection to be in evidence and before the court and jury. We think the effect of this nature of objection estops appellants from saying that it was not before the court and jury, and they should have placed it in the bill of exceptions so that the action of the court may be reviewed in the light of the objection, even though there may not have been a formal introduction of it. We cannot review the objection when it shows that we have not before us the matters pointed out in the objection, upon which the ruling of the court was invited by appellants.

Appellants also claim for error that it was available to them to show that, though the written agreement of compromise did not so state, appellee verbally agreed to pay appellants for charges made by their counsel for services rendered them in making the compromise agreement and prior thereto in connection with the transaction, and that there was error in the court's instruction to the jury that such written agreement of compromise is the sole evidence of what was the obligation of both parties in that connection.

When a written instrument shows that it contains the obligation of both parties to it, that alone is evidence of the terms of the contract. It is only when the instrument shows that it does not contain all the terms of the contract as to both parties to it that evidence may be offered to show further stipulation than those expressed, unless it is proposed to prove an engagement independent of and collateral to the matters embraced in such written instrument. Stallings v Savage, 206 Ala. 486, 90 So. 904; Thompson Foundry & Machine Co. v. Glass, ...