Martin v. Jesse-French P. & O. Co. , 151 Ala. 289 ( 1907 )

DENSON, J.

The plaintiff, with leave'of the court, amended the complaint, and in making the amendment omitted to write the word “plaintiff” between the words “the” and “claims.” On account of this omission it is now insisted that the complaint fails to show that any party claims the amount sued for in the complaint, and therefore that the complaint will not support the judgment. The summons calls the defendant into court to answer the complaint of Jesse French Piano & Organ Company, a corporation, and the title or caption of the complaint shows that Jesse French Piano & Organ Company is the plaintiff. Obviously, the omission is a self-correcting clerical error, and the insistence based on it cannot prevail.

The amended complaint appears to have been filed on the 28th day of November, 1905, and counts for recovery on a “promissory note or writing.” It is alleged that the note is payable in installments of flO monthlv, and contained a stipulation that, in the event the defendant failed to make payment of any of said installments when due, then the balance remaining unpaid should become due and payable. A note may be payable in installments, the whole amount of which is to become due and payable upon failure in the payment of one installment; and that, too, without affecting its validity as a note.— 4 Am. & Eng. Ency. Law, p. 94.

The note was lost, and was not produced on the trial. The only defense was non est factum. It was essential that the plaintiff should prove the execution of the note or paper sued on. For this purpose, after' the witness Stewart had testified that the defendant executed the note, and. at the same time executed another paper, in which there was an admission of the execution of another contract bearing even date with the paper, the witness’s evidence showing, further, that the note and paper were the only papers that were executed by the deféndant, the paper was competent, and was properly received as evidence ténding to show an admission by the deféndant that tile note was executed by him. Stewart having testified that he carried the note and other paper and delivered them to Forbes at the same time, it was competent, as identification of the paper and to show loss of the note, for Forbes to testify that Stewart delivered him the note and the paper that was offered in evidence.

But we think the court erred in. allowing Forbes, over the objection of the defendant, to testify that, at the time he received the note and other paper from Stewart, he also received from Stewart $10 in money. This did not tend to prove any issue in the case. It was res inter alios acta, and could not bind the defendant. We cannot say that this evidence worked no injury to the defendant, and must hold that the error in admitting the evidence must work a reversal of the case.

The court properly refused the written charge asked by the defendant. It required too high a degree of proof. — Torrey v. Burney, 113 Ala. 496, 21 South. 348; Carter v. Fuhjham, 134 Ala. 238, 32 South. 684.

We have discussed only the assignments of error that have been insisted upon. For the single error noted above, the judgment is reversed, and the cause remanded.

.'Reversed and remanded.

Tyson, C. J., and Haralson and Simpson, JJ., concur.