Lackland v. Turner

SAYRE, J. [1,2] Turner recovered judgment against Lackland as executor of the last will and testament of his wife, Almira Martin Lackland, deceased, for the price of certain materials, sash, doors, and '’other “factory work,’’ furnished to a building owned by deceased. The controlling issue was whether plaintiff had furnished his materials on the credit of Mrs. Lackland, since deceased, as he contended, or on the credit of Raub (or Raub & Co.), the contractor who was at the time engaged in constructing the building for Mrs. Lackland. As to this issue the evidence was in conflict, and the question at issue was one for jury decision. Plaintiff testified to facts from which the jury might have properly inferred that Lackland, who conducted the negotiation with plaintiff, was acting therein as the authorized agent of his wife; that he (plaintiff) informed Lackland, in effect, that Raub had no credit with him, but that, if Lackland would see that he got his money, he would deliver the materials; that Lackland said that he was going to see that Raub did not get away with him and that he would see that he (plaintiff) got his money; that he would keep it out of the contract he had with Raub. From plaintiff’s testimony, stated above, the jury had a right to infer that he furnished the materials on Mrs.-Lackland’s credit; that the promise of deceased, made by and through her husband as her agent, was to pay her own debt id a particular way, out of a particular fund. Woodruff v. Scaife, 83 Ala. 152, 3 South. 311; Aultman v. Fletcher, 110 Ala. 452, 18 South. 215; Bates v. Birmingham Paint & Glass Co., 143 Ala. 198, 38 South. 845; Beitman v. Birmingham Paint & Glass Co., 185 Ala. 313, 64 South. 600. [3-7] In the brief here defendant argues that the promise of defendant’s testator was to piay the debt of Raub, a promise obnoxious to the statute of frauds. We have said enough, with citation of authorities, to dispose of this contention. In addition, it may be said that the statute was not pleaded, and that, in order for the statute to be made the basis of defense, it must be specially pleaded; otherwise it is waived. Ex parte Banks, 185 Ala. 275, 64 South. 74. Numerous cases might be cited to this point. A different rule prevails in equity when the facts constituting the defense appear on the face of the bill. In such ease the defense may be made by demurrer. In this connection it may be noted that parties may try their causes upon issues not formally made in the pleadings, and in such case may not shift their ground in this court, and, further, that the evidence in this cause adduced to show that plaintiff did or did not extend credit to deceased and did or did not extend credit to Raub would have been relevant and material had the statute of frauds been pleaded; but it was relevant to the issue joined, the general issue, nor does there appear on the record a single circumstance going to show that the parties treated the case in the court below as if the statute of frauds were involved. Per contra, everything goes to show that no question was made about the statute of frauds. [8, 9] Another question, ’subordinate to that considered above, had some attention in the trial court, and has been renewed here. Raub having failed to complete the building, plaintiff and another had accepted an assignment, virtually, of Raub’s claim against the deceased, or her building, for the benefit of creditors holding liens against the property, *75 and afterwards had accepted a sum of money, the pro rata product of the assignment, as a credit on the claim here in suit. Defendant contends that these facts estopped plaintiff to maintain this action. In this state an estoppel in pais must be pleaded where there is an opportunity to plead. Jones v. Peebles, 130 Ala. 269, 30 South. 564. This rule obtains in law and equity, and our reports contain numerous cases on the subject. In other respects, also, this point in appellant’s brief is in the same category with that made concerning the statute of frauds. Moreover, the testimony of plaintiff was that he only entered into the arrangement with the creditors of Raub at the request of defendant and on the express understanding that his so doing should not- be allowed to prejudice the claim now in suit. If the jury gave credit to plaintiff’s testimony in this behalf, there was no estoppel. In effect, and without reference to plaintiff’s alleged saving clause, by the arrangement mentioned all parties may be said to have treated the building as their debtor, and, if so, .there was,, of course, no waiver by plaintiff. [10] The fact that plaintiff charged his materials on his books to “E. J. Raub & Co. for Lackland Job,” accepted from Raub a payment to be credited on the account in suit, and went into the arrangement with others who were creditors of Raub and looking to tlieir liens for compensation — -and as well the terms of plaintiff’s bid on the materials, addressed to Raub after the conclusion of the agreement between plaintiff and defendant— these circumstances, singly or in the aggregate, were not conclusive, but were for jury consideration. The foregoing discussion relates to defendant’s assignment of error in which he complains that the trial court refused his request for the general affirmative charge. The charge was properly refused, and the question at issue was properly submitted to the jury for decision. [11,12] Assignments based on two rulings on evidence have been considered without finding error. The suggestion that plaintiff’s testimony, that he told the meeting of creditors that he would not act as trustee in the assignment if it would affect his claim with Mr. Lackland, was self-serving, is very clearly without merit. We have stated the effect of that statement, and proof of it was entirely competent. Nor was there error in permitting the question as to Mrs. Lackland’s age. If she was old and feeble, as the answer tended to show she was, that was a fact shedding some light on plaintiff’s contention that her husband, who was young and vigorous, in the negotiation for the supply of the materials furnished by plaintiff for use in her building was acting as her agent. The ease was properly submitted to the jury, and the judgment must be affirmed. Affirmed. ANDERSON, O. J., and GARDNER and MILLER, JJ., concur.