Tapia v. Baggett

52 So. 834, 167 Ala. 381, 1910 Ala. LEXIS 476

Opinion

ANDERSON, J.

The plaintiff introduced the note, containing an assignment thereof, and made out a prima facie case. The defendant failed to prove his second plea, “want of consideration.” There was a consideration, whether the policy should have been made payable to him or his wife. He also failed to establish his third plea, which, among other things, averred that he did not accept the policy. The undisputed evidence shows that he not only accepted it, but retained it for three or four months, without objection or making any effort to return it. Hjad the defendant died while in possession of the policy, during the three or four months after the issuance thereof, having made no objection or protest, the company could not have' defeated the payment of same upon the ground that it had not been accepted.

The plaintiff was entitled to the charges requested, and which included the general charge. The judgment of the circuit court is reversed, anil the cause is remanded.

Beversed and remanded.

Simpson, McClellan, and Sayre, JJ., concur.