McLendon v. Rubenstein , 180 Ala. 615 ( 1913 )

MAYFIELD,. J.

The action is to recover rent for a storehouse. There were two counts, one special and one common. The defendant pleaded the general issue, payment, set-off, and recoupment.

Demurrers were sustained to pleas 3 and 4, which were, respectively, set-off and recoupment. These pleas were subsequently amended, and two other pleas, numbered 5 and 6, were added, to all of which demurrers were overruled. To these pleas plaintiff filed eight special replications. The defendant moved to strike these replications. This motion being overruled, he demurred to each of the special replications. The court sustained the demurrer to replications 2, 3, and 4, and overruled it as to 1, 5, 6, and 7. The defendant complains as. to each of these adverse rulings and assigns the same as error.

There was no reversible error as to any of these rulings of which the defendant does or can complain. Whatever reversible error there was, if any, as to the rulings on the pleadings, was favorable to the defendant; and of this he cannot complain.

The pleas as to which demurrer was sustained attempted to set up a cause of action against a third party as a set-off or recoupment to this action, without properly connecting the plaintiff with the matters set up in said pleas, and without showing, in any manner, that the plaintiff was liable for the acts of such third party. It is therefore too plain to require argument that they set up no defense to this action of the plaintiff.

The defense attempted to be set up by pleas 3 and 4 as amended, and by pleas 5 and 6, was that the defendant subrented the leased premises to one Woods for eight months at $10 per month, and that, before Woods entered or paid his rent, one Mrs. B. Q-. Bubenstein, the original landlord, served notice upon the defendant to vacate the premises, and that on account of this notice Woods declined to take the premises or to pay the rent. These pleas, as amended, and pleas 5 and 6 were each insufficient as pleas of set-off or of recoupment. So far as appears from these pleas or from other parts of the record, the notice to vacate Avas proper and was no breach of any duty Avhieh the plaintiff owed the defendant. Construing the pleas against the pleader, we must presume that the act of the plaintiff or of Mrs. B. G. Rubenstein in giving the notice to vacate Avas proper.

The trial court, hoAvever, ruled in favor of the defendant (appellant here) and put the plaintiff to his replication. These replications, as to Avhieh demurrer Avas overruled, replied by merely setting up, affirmatively, the matters which sliOAved that the notice to vacate Avas properly given and Avas no breach of any duty which the plaintiff OAved the defendant. The first alleged that defendant had no right to submit the premises; the sixth that the lease contract was a tenancy at aauII, and that the plaintiff had the right to terminate it, on giving the notice complained of in these pleas; and the seventh alleged that the defendant had not rented the premises for the period for Avhieh he sub-rented to Woods, and therefore had no right to so sub-rent to Woods. Each of these replications was a complete ansAver to any right of action in the nature of a set-off or recoupment, as attempted to be set up in the pleas; and there Avas no error in overruling the demurrer thereto.

There Avas no error in overruling the defendant’s objection to the question propounded to the plaintiff as to a letter he had received from the defendant. The question did not call for the contents of the letter, but only for the fact of the existence or the receipt of the letter, and no objection Avas made to the question until it was answered. The objection came too late. The defendant could not be allowed to speculate on what the answer Avou'ld be and, if unfavorable to him, to then object.

There was no error in refusing either of the defendant’s requested charges; they were in effect the affirmative charge for the defendant; and there was ample evidence to support the verdict rendered for the plaintiff. Likewise there was no error in overruling defendant’s motion for a new trial. We are not persuaded that any reason is shoAvn why the verdict and judgment rendered should not stand. While there is conflict in the evidence, there is ample evidence to support the verdict and judgment rendered. The plaintiff testified that the defendant admitted owing the amount sued for, and promised to pay it.

Finding no error the judgment is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.