Acha Hermanos Y Cia v. Rosengrant

84 So. 399, 17 Ala. App. 267, 1919 Ala. App. LEXIS 243

• Court: Alabama Court of Appeals
• Decided: November 11, 1919
• Docket: 1 Div. 326. [fn*]
• Status: Published

Opinion

BRICKEN, J.

This was a suit' by appellee against appellant aiid was filed on December 13, 1915.

The complaint consisted of two' counts; the first being upon open account, and the second for goods, wares, and merchandise sold by the plaintiff to the defendant. There was an indorsement upon the complaint:

“The account sued on above is itemized and verified by affidavit and is filed simultaneously with this complaint.”

On May 15, 1917, the defendant filed an affidavit denying the correctness of the account sued on. The case was tried upon the pleas of the general issue, accord and satisfaction, and payment. There'was judgment for the plaintiff, and defendant appeals to this court.

[1, 2] There was no error in admitting the verified account in evidence. The affidavit denying its correctness was not filed within the time allowed for pleading. Acts 1915, p. 609. Nor was there error in refusing to allow defendant to refile said affidavit.

We have carefully examined the record, and are of the opinion that the plaintiff was entitled to the affirmative charge, and that there was no error on the part of the court in giving the affirmative charge requested in writing by plaintiff. There was no evidence sustaining the pleas of defendant. Even if it should be held that the court erred in its rulings upon the evidence complained of, the plaintiff was still entitled to the affirmative charge.

We are unable to see how the letter of August 29, 1914, could shed any light on the transaction, and the court properly sustained objection to it as evidence.

[3] There was no error in refusing to allow defendants to introduce the claim for expenses. Such matter should have been presented as a set-off.

There was no error in allowing the plaintiff to introduce the copy of the cablegram to the Bank of Yiseaya, as it was made to the bank in response to the cablegram from defendants.

[4] Although there might have been error in the rulings of the court upon the evidence complained of by defendants, still it would have been error without injury, because, even with such testimony in, the plaintiff would have been entitled to the affirmative charge.

[5] The assignments of error as to the charges given and refused are not insisted upon by appellant in brief and argument, and will be treated as waived.

The judgment of the circuit court is affirmed.

Affirmed.