Moberly v. Peek , 67 Ala. 345 ( 1880 )

STONE, J.

— This suit, brought by appellant, originated in an attachment for rent. The-defense is threefold. First, it is claimed by defendant that Moberly, the owner of the land, let it to H. C. Rogers on an executory consideration, who was to control and rent out the lands, and was himself entitled to receive the rents; and that defendant obtained the right to occupy, use and cultivate the lands from Rogers, and not from Moberly. To this plaintiff relies on two replications ; first, that Rogers had failed to observe his part of the agreement, and thereby put an end to it; second, that the parties had rescinded the contract by mutual agreement. Peek’s second defense is set off, to which the plaintiff replies the statutes of limitation of -three and six years. The third ground of defense is former recovery, in a suit brought by Moberly before Lawson, a justice of the peace, for a part of the identical rent herein sued for. Testimony pertinent to each of these issues was admissible. Under the first line of defense, the contract between Moberly and Rogers, which was in writing, was admissible. So, also, any evidence tending to show that Rogers had, or had not performed his part of the contract, or, that the contract had or had not been rescinded, was competent, and should have been received. The testimony on most of the disputable questions was greatly conflicting.

The plaintiff interposed demurrers to. the third and fourth pleas. The third plea is defective in not averring that the two suits were founded on one and the same contract of renting. To bar a second suit, the first must have been brought on the same cause’ of action, or upon a part of one and the same contract, which is admissible.-— S. & N. Railroad Co. v. Henlein, 56 Ala. 368. It is also defective in not averring, in some way, that the justice had jurisdiction of the cause tried before him. If the plea had averred the amount claimed in that suit, and that amount did not exceed one hundred dollars, this would have shown the justice had jurisdiction of the subject matter. It is also customary in such pleas to aver the judgment relied on in bar of a second suit, remains of full force and unreversed, The fourth plea is substantially good.

The replications to the third and fourth pleas are insufficient. They do not negative the oneness of the contract.

That the defendant moved away from plaintiff’s lands “ to keep down a fuss,” could shed no light on any issue in this cause, and should not have been allowed to go to the jury.

This is an error of statement in the 8th subdivision of the general charge. The defendant did not set up a written contract between plaintiff and himself. The written contract set up was between plaintiff and Sogers.

We find no other errors in the record.

Seversed and remanded.