Lagerfelt v. McKie

100 Ala. 430

• Court: Supreme Court of Alabama
• Decided: November 15, 1893
• Status: Published

Opinion

COLEMAN, J.

This was an action to recover rent, and began in a justice court, by the issue of an attachment to enforce payment of several installments past due. The defense set up is purely technical, and is without any merit. The contract of lease was in writing, made by J. I). McKie, agent for Laura McKie, and Lagerfelt, the defendant in attachment, and was signed by J. D. McKie and Lagerfelt. The several rental notes were made payable to J. D. McKie. The contract of lease was not signed by Laura McKie. The rental notes were endorsed in blank by J. D. McKie. The affidavit for the attachment averred that the rental claim was the property of the plaintiff, Laura McKie. There was no plea denying plaintiff’s ownership of the notes, and her right to the claim was not in issue. Moreover the proof showed the rented property belonged to her, and that the defendant occupied it during the entire term of the lease unmolested, and that he failed to pay the rent notes, upon demand made, after they were due. The statute of frauds does not arise in the case for the following reasons:

First. The defense of the statute of frauds to be available, should be specially pleaded.

Second. The rental contract was in writing signed by the tenant, and also the rental notes. It was not necessary that Laura McKie should sign, to mate them binding on him. See Nelson v. Shelby Man’f’g. & Imp. Co., 96 Ala. 515.

Third. - The contract was fully executed as to these notes. The statute of frauds is not available as a defense, when the suit is upon an executed contract.

The defense attempted to be set up under the plea that the suit in the Circuit Court was a departure from the character of the action in the justice court, is equally destitute of merit. On appeal the trial must be de novo. The only departure in pleading, which is not permissible on appeal from a justice’s court,is that the form of action shall not be

* an entire change of parties plaintiff or defendant.—Smith v. East Tenn., Va. & Ga. R. R. Co., 96 Ala. 516; M. & M. Railway Co. v. McKellar, 59 Ala. 460. In .the present case however there was no departure from the original suit. In both courts, the action was ex contractu, to recover rent, for the same dwelling, and by the same party. The changes made were mere amendable defects. There is no error in the record.

Affirmed.

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