Houston v. Davis

49 So. 869, 162 Ala. 122, 1909 Ala. LEXIS 313

• Court: Supreme Court of Alabama
• Decided: May 24, 1909
• Status: Published

Opinion

ANDERSON, J.

This was a statutory trial of the rights of property between the landlord and the mortgagee of the defendant. The only question in the case was the amount of rent that the defendant agreed to pay his landlord, Davis; the defendant and claimant contending that it was 1,750 pounds of lint cotton, and. the plaintiff contending that it was 2,750 pounds of lint cotton. If it was 2,750 pounds, the judgment was properly rendered for the plaintiff. If but 1,750 pounds, then there should have been a judgment for the claimant, as it was undisputed that the plaintiff was paid 1,532 pounds of the grades called for and had been tendered the ATalue of the other 218. Whether a tender of the value, instead of the cotton itself, Avould satisfy the lien, we need not decide, as the record shows that the plaintiff did not question such a. tender, but took issue upon same. Moreover, if the plaintiff changed the note, Avhich was the rental contract, from 1,750 pounds to 2,750 pounds, without the consent of the defendant, that Avould discharge the defendant of any further liability thereon. —Brown v. Johnson Bros., 127 Ala. 292, 28 South. 579, 51 L. R. A. 403, 85 Am. St. Rep. 134; 3 Brick. Dig. 27.

The defendant testified that his rent was but 1,750 pounds, and plaintiff testified that it was 2,750. They both agree that the rental contract was in writing, and that a copy was given the defendant, and that both the original and copy were written by the plaintiff; the plaintiff claiming that the original was never changed, but that the copy was changed after its delivery to the defendant. The defendant claims that the copy was not changed, but that the original was changed, after execution and delivery, from 1,750 pounds to 2,750 pounds: Pruett, a writing expert testified that the original, and not the copy, had been changed. The original papers have been sent up with the record, and our examination of same discloses that the original, and not the copy, was changed.

This court is loath to disturb the finding of a jury, unless the verdict is clearly and palpably contrary to the great weight of the evidence. We think that the appearance of the two notes (the original and copy), together with the testimony of Pruett, so convincingly corroborates the defendant as to render, the verdict contrary to the great weight of evidence. It was not a question of the number of witnesses, etc.; but the earmarks of the notes speak for themselves, and in stronger terms than the affirmation or denials of the interested parties.

Section 6043 of the Code of 1907 requires the ascertainment of the amount due. upon the mortgage or lien only when the claimant’s claim is sustained. The claimant did not have to show the exact amount due upon her mortgage in order to question the plaintiff’s title. It was sufficient if anything was due thereon. Presumptively the whole debt which it was given to secure was due, in the absence of any evidence to the contrary. The complainant proved, however, that a large part thereof was still due.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.