Henderson v. Lewis

45 So. 2d 716, 35 Ala. App. 267, 1950 Ala. App. LEXIS 491, 1950 Ala. Civ. App. LEXIS 370

• Court: Alabama Court of Appeals
• Decided: April 11, 1950
• Docket: 4 Div. 142
• Status: Published

Opinion

CARR, Judge.

This is a suit on a promissory note.

In the court below, the judge, without the aid of a jury, rendered a judgment in favor of the plaintiff.

The only contention in brief of appellant’s counsel is that after suit was filed his client tendered his check for $309.10 endorsed “Acct. in full”; that at this time the amount then due was in dispute and therefore the cashing of said check by the appellee constituted an accord and satisfaction. Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662.

This insistence is based primarily on the fact that suit was originally filed for $382.10 after an amount due of $359.10 had been agreed upon by the parties and $50.00 had been paid by the appellant subsequently to said agreement.

The complaint was amended and it is stated therein that the claim for $382.10 was an inadvertence and the purpose of the amendment was to correct the error and only $309.10 “was and is the only and intended amount to be claimed.”

Clearly this error in the original complaint which was corrected by amendment would not of itself determine the factual issue as to a dispute in the amount agreed to be due on the indebtedness.

The appellant did not offer any testimony. The evidence, therefore, was without substantial dispute.

The court entered judgment for interest, court costs and attorney’s fee. In effect he concluded that there was not any bona fide dispute between the parties with reference to the principal sum due on the indebtedness.

The evidence amply supports this judgment, and it is due to be affirmed. It is so ordered.

Affirmed.