Knight v. Bradley , 101 Ala. 517 ( 1893 )

McCLELLAN, J.

The appellant was plaintiff below, the action being on a note executed by the defendant Bradley. No pleas appear of record, but the judgment entry recites that issue was joined. On this state of the record, if it does not appear from the bill of exceptions that other defenses than such as may be made under the general issue were mutually and without objection litigated, the presumption is that the general issue only was presented. Under our statute, payment is matter for special plea, and can not be given in evidence under the general issue. In this case, however, evidence of payment was admitted without objection and payment vel non was really the issue to which both parties addressed themselves — the only litigated issue indeed on the trial. Under these circumstances the further presumption will be indulged that that issue was properly presented by plea. — Richmond & Danville R. R. Co. v. Farmer, 97 Ala. 141, 12 So. Rep. 86; Kansas City, Memphis & Birmingham R. R. Co. v. Burton, 97 Ala. 240, 12 So. Rep. 88.

This doctrine proceeds on the idea that by their course on the trial the parties have consented to the litigation of the issue to which the evidence is directed and thereby waived the formal interposition of a plea. But the presumption will go no further than is necessary to give effect to this implied consent, or, in other words, it will not be presumed that any other plea than such as would render the course of the trial regular and proper was entered; and where the evidence adduced without objection is admissible equally under either of two special pleas, neither of which appears by the record, and one is broader in its scope and, if sustained, more prejudicial to the plaintiff than the other, it will be intended that the issue consented to be tried, though not formally presented, was the more restricted and less prejudicial, because the plaintiff may well and consistently insist that his implied consent extended only to the less hurtful of the two, since that equally with the other accommodates the evidence which he has allowed to go in by failing to object to it. This case illustrates the proposition we are endeavoring to declare. Here the evidence which was not competent under the general issue, and which was yet adduced without objection by the plaintiff, was pertinent to either of two issues which might have been regularly presented by special plea, namely, payment and set-off. Having failed to object and having thus without objection litigated an issue to which this evidence was relevant, the plaintiff can not now be heard to say that no such issue was formally made : that would be inconsistency on his part and to permit him to speculate on the result of the inquiry — to profit by it if found in his favor, and not to be bound if found against him. But he can consistently say that he consented to try the issue of payment vel non without that defense being specially pleaded, and at the same time that he did not consent to try the issue of set-off, or waive the formal tender of that issue. He might well be content to abide the issue of payment, while unwilling to take the chances, unless forced to do so by plea actually and seasonably filed, of a judgment over against him.

On these considerations, we hold that the plea of payment is to be taken as having been regularly filed in this case, but that it can not be presumed that set-off was pleaded at all; and there is the more reason for this conclusion in the fact that set-off is in the nature of a cross action and must in strictness be stated with the same particularity essential to a complaint in an original suit. There being no issue of set-off in the case, no cross action seeking a recovery over against the plaintiff, the trial court erred in giving charge 3 which authorized the jury to return a verdict for excess of payments over the debt claimed. We discover no error in giving the other instructions excepted to.

The judgment is reversed, and the cause remanded.