B. F. Roden Grocery Co. v. Leslie

53 So. 815, 169 Ala. 579, 1910 Ala. LEXIS 198

Opinion

DOWDELL, C. J.

The pleas to which demurrers were interposed sufficiently set up the discharge of the defendant in bankruptcy, and hence are not subject to the demurrer on that ground. It was not necessary to the sufficiency of the pleas that they aver that the plaintiff’s debt was scheduled. The failure to schedule the plaintiff’s debt was matter for special replication to the plea setting up the discharge in bankruptcy. There was no error in overruling the demurrers.

It was competent to identify the claim or note sued on as being the one scheduled in the proceedings in bankruptcy. It was likewise permissible to show in evidence that, although the schedule described B. F. Roden & Co. as the creditor, and the owner and payee of the note, in fact it was the B. F. Roden Grocery Company. Such misdescription is always open to explanation.

The third replication averred, among other things, a subsequent promise by the debtor. On this there was a conflict in the evidence. The insistence in argument that the general charge should have been given for the plaintiff as requested, for the reason tnat the third replication was proven without conflict, is unsupported by the record.

The written charge numbered 3 invaded the province of the jury, and was therefore properly refused. What weight shall he given to the testimony of witnesses is a question for the jury.

We find no reversible error in the record, and the judgment is affirmed.

Affirmed.

Anderson, Sayre, and Evans, JJ., concur.