Dryer v. Lewis , 57 Ala. 551 ( 1877 )

BRICKELL, C. J.

1-2. This was an action of detinue for the recovery of a horse, in which the appellant was plaintiff, and the appellee defendant. The title of the appellant was that of a mortgage. The defense was, the payment of the mortgage debt, the defendant having possession of the horse, as administrator of the deceased mortgagor. A mortgagor of personal property, or his personal representative, may, whpn sued by the mortgagee for the recovery in specie; of the thing mortgaged, defeat a recovery by proof of the-payment of the mortgage debt.—Brown v. Lipscomb, 9 Port. 472; Sims v. Caufield, 2 Ala. 555; Bell v. Pharr, 7 Ala. 807; Morrison v. Judge, 14 Ala. 182. The evidence tending to-prove payment was objected to generally; and the specific-objection now urged, is, that the payment being made after the commencement of the suit, ought to have been pleaded puis darrein continuance, and not having been so pleaded, the evidence was inadmissible. It does not appear that the facts relied on as proving payment occurred after issue joined, and if they did not, they were not proper matter of a plea, puis darrein continuance. A distinction well established, exists between a matter of defense arising after issue joined, and such matter when it arises pending the suit, but before-issue joined. The former must be pleaded puis darrein continuance; the latter is a plea in bar to the further maintenance of the suit, and in the absence of a statutory provision, unlike a plea puis darrein continuance, may be pleaded with other-pleas in bar.—Sadler v. Fisher, 3 Ala. 200; Burns v. Hindman, 7 Ala. 531; McDougal v. Rutherford, 30 Ala. 253.

3. The specific objection now made to the evidence, can not be supported. The generality of the objection would have justified the court in overruling it. “ Undefined objections should never be made to the admission of evidence; and it may be laid down generally, that if the party making them, will not particularize, the court is not bound to cast about for the grounds upon which, in the mind of counsel, they are rested, but may promptly disregard them. Justice-itself, the dignity of judicial proceedings, and the certainty of the law, afl impel to this conclusion.”—Wallis v. Rhea, 10 Ala. 451. If the objection now relied on, had been made in the Circuit Court, and an amendment of the pleadings had. been necessary, the court would have at once directed it, and thus removed the ground of objection.

4. The principle of the common law, that if one undertakes to serve another for a definite time, at certain wages,, or where an entire contract has been entered into for the-performance of a number of acts, the service or labor is a. condition precedent to the right to demand payment, was-recognized in Greene v. Linton, 7 Port. 133; Givhan v. Dailey, 4 Ala. 336. The statute has since changed the principle, in its application to contracts for personal service, when full performance is prevented by the death of the servant, during-the term of service. His representatives are then entitled to recover a rateable compensation for the services actually rendered. — B. C. § 2557; Code of 1876, § 2922. The intestate of the appellee was entitled to a rateable compensation for the services rendered to Boyd.

5. If the appellant had entered into a contract with Boyd,., by which he bound himself to pay such compensation, the appellee would be entitled to recover it of him.—Mason v. Hall, 30 Ala. 599; Huckabee v. May, 14 Ala. 263. The-amount of such compensation was the matter of controversy.

6. It would have been competent for Boyd, if he had been sued for such compensation, to reduce the recovery by proof' that the intestate of the appellee, from bad health, was disabled from rendering efficient service, or that from negligence, his services were less valuable than they would have been if he had been diligent.—Hunter v. Waldron, 7 Ala. 753; Jones v. Dryer, 16 Ala. 221. The same right the appellant could exercise, as his promise was, to pay only what was justly due-from Boyd.

7. The evidence offered and rejected by the Circuit Court,, was not confined to proof of these facts. It extended to proof of damages, not the immediate, natural consequence of" the inability of the intestate to render efficient service, or of his negligence. The measure of damages was the difference between the value of the services actually rendered, and the-value of the services contemplated by the contract. Or, if ‘ Boyd had been compelled to pay for services or labor, the intestate ought to have rendered the reasonable value of such-services. Damage to the crops, in consequence of the intestate’s sickness, or negligence, was not a proper criterion of the measure of reduction. This could have been avoided by the employment of another to supply the place of the intestate. Peters v. Whitney, 23 Barb. 24; Burton v Holley, 29 Ala. 318.

7. When legal is united with illegal evidence, the court is not bound to separate the good from the bad — but may ■reject the whole.—Smith v. Zauer, 4 Ala. 99.

We find no error in the record, prejudicial to the appellant, and the judgment is affirmed.