Hyatt's Supply Co. v. Lyle

BROWN, J. This is an action of assumpsit; the complaint consisting of two of the common counts, on open account, and on stated account. The plea was the general issue. The plaintiff offered evidence tending to show that the defendant admitted that he was indebted to the plaintiff in the sum of $183.53, and, in connection with the testimony of the witness, offered in evidence a statement of account in favor of the plaintiff and against “M. W. B. Lyle Studio,” containing items of account and credits thereon, running from January 1,1928, to March 28,1929, showing a balance of $183.53; it being shown that this statement of account was presented to the defendant, and he admitted its correctness and agreed to pay it. At the conclusion of the evidence, the court, at the request of the defendant in writing, gave the affirmative charge for the defendant. The proposition asserted to sustain this ruling is: “The mere promise of a defendant to pay the debt of another on no other consideration than the debt itself is nudum pactum” — citing Richardson v. Fields, 124 Ala. 535, 26 So. 981. The proposition stated is good, but it is not applicable here for at least two reasons: First, want of consideration is a special defense and cannot be availed of under the general issue. Code 1923, § 9470; American Oak Extract Co. v. Ryan, 112 Ala. 337, 20 So. 644; Sanders v. Williams, 163 Ala. 451, 50 So. 893. Second, if it be conceded that the form in which the account is stated is some evidence that the account was originally against another, still there is evidence tending to show that the account is that of the defendant. Reversed and remanded. ANDERSON, O. J., and SAXRE and THOMAS, JJ., concur.