Davis v. Reid Lumber Co. , 204 Ala. 517 ( 1920 )

The complaint was under Code form and was not subject to defendant's demurrer. It is true that, when the plaintiff attempts to recover in detinue for the use or hire of property for a period anterior to the service of the writ, the original possession by the defendant being rightful, a special demand is necessary. Rust v. Electric Co., 131 Ala. 484, 31 So. 486. But this question should be raised by objections and charges and not by demurrer to a count which is in Code form. Daniel v. Jordan, 146 Ala. 230, 40 So. 940. Moreover, the complaint in the instant case only sought damages for the detention from the bringing of the suit.

The trial court did not err in striking from the defendant's plea of set-off so much thereof as sought a judgment over. This was an action of detinue, and, upon the statutory suggestion as to the ascertainment of the amount of plaintiff's debt or demand, the defendant may set up any matter, other than the statute of limitations, that he might have pleaded, had the action been on the debt. Section 3791 of the Code of 1907. This statute, however, authorizes this only to defeat the action of detinue or the fixation of the amount owing from the defendant, and does not contemplate or permit a judgment over for the excess. McDaniel v. Sullivan, 144 Ala. 583, 39 So. 355. Moreover, if this were not the case, the appellant cannot complain in the present instance for the reason that the jury found that the offset did not exceed the plaintiff's debt or demand.

The trial court did not err in permitting the witness Reid to testify that the notes were all given at the same time, that is, to show that the date of one of them was not correct and to prove the correct date of same. Burns v. Moore, 76 Ala. 339, 52 Am. Rep. 332; Miller v. Hampton, 37 Ala. 342; Robbins v. Webb,68 Ala. 393; Elyton Co. v. Hood, 121 Ala. 378, 25 So. 745; Corley v. Vizard, 203 Ala. 564, 84 So. 299.

The case of Formby v. Williams, 203 Ala. 14, 81 So. 682, dealt with an effort to change by parol the maturity or law day of a mortgage. Nor does the case of Cuningham v. Milner,56 Ala. 522, relate to parol proof as to the true date of a note or deed.

The controverted question in this case was the balance due upon the notes and mortgage, or rather the correctness of certain deductions or rebates upon various shipments of lumber as for shortage in quantity or deterioration in grade or quality. As to all of said items, except check for $46.31, there was sufficient legal evidence from which the jury could have inferred that the defendant, with full knowledge, acquiesced in or ratified the same. As to the rebate check to Wynne Bros. of $46.31, the witness Reid did not know whether it was proper or not, and made it upon the mere ex parte statement or demand of Wynne Bros. and without conferring with the defendant or procuring from him a consent or acquiescence as to said rebate. In other words, there was no proper legal evidence establishing the deficiency for which the rebate was made or contradicting the defendant's evidence as to the shipment involved; and this item, or the evidence attempting to establish the same, should have been excluded by the trial court. This, however, is the only error we find which could justify a reversal of this case, and said item is so separable and distinct from the others that it can be now excluded without changing the result to the prejudice of the defendant, and, as counsel for appellee in his brief consents to the remittitur in case this court should find the item improper, the judgment for the plaintiff is affirmed; but the amount as ascertained by the jury to be due the plaintiff upon the notes and mortgage will be corrected and a deduction therefrom of $46.31, with interest since May 19, 1916, is hereby directed, and the appellee will be taxed with the cost of this appeal. See Acts 1915, p. 610. The judgment of the lower court is corrected and affirmed.

Corrected and affirmed.

McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.