Kirkland v. Neeley

SAMFORD, J. The first and most urgent insistence made by appellant in his written argument is that the trial court commit- . ted error in overruling defendant’s motion for a new trial on the ground that the verdict of the jury was contrary to the weight of the evidence. He cites no authority to sustain his contention, and admits that the evidence on every point is in conflict. Where this is the case this court will not find error in the rulings of the trial judge in overruling the motion for new trial. Cobb v. Malone, 91 Ala. 388, 8 So. 693; 1 Mitchie’s Dig. 547, § 1002. It is insisted that the court erred in sustaining plaintiff’s demurrers to defendant’s pleas 2 and 3. It is true that these special pleas 2 and 3 were not subject to the grounds of demurrer interposed, and the court committed error in sustaining the demurrers as filed. The pleas, though faulty in some particulars, present the defenses of accord and satisfaction and payment. Despite the ruling _ of the court on demurrer, the parties proceeded to trial under the plea of the general issue, and under that plea the defendant presented every defense to which he was entitled under the pleas of accord and satisfaction and payment. Evidence was admitted, and the charge of the court proceeded upon the theory that all defenses were admissible under the general issue. Where this is the case the rule as stated by former adjudications and reaffirmed in Federal Auto Ins. Ass’n v. Mey [228] ers (Ala. Sup.) 119 So. 230,1 is: “When the parties adopt a theory for the trial, and it is tried with that understanding by the parties and court, this court accepts the view that the pleadings present that theory.” The above rule renders the error of the court in sustaining the demurrers harmless. Charge C, refused to defendant, is faulty and properly refused, in that it requires a verdict for defendant based upon an agreement not performed on the part of defendant. If Neeley and defendant agreed that defendant might satisfy the obligation by paying $250 and defendant in furtherance of said agreement made the payment, then the plaintiff could not maintain this suit. But the charge failed to predicate a recovery by defendant on that pant of the’ agreement which required payment. The appellant is evidently confused as to the fifth assignment of error. The brief refers to one 'thing and the assignment relates to another. The assignment is thereby waived. The fourth assignment of error is omitted from the brief and is waived. The sixth assignment of error relates to an interrogatory propounded to one of plaintiff’s witnesses, hut the assignment points to no ruling of the court calling .for review, and the brief fails to enlighten us on the question. The remaining rulings of the court relate to rulings of the court on the admission of testimony in which we do not find reversible error. Finally, the appellant’s brief is not in compliance with Supreme Court rule 20, and perhaps should be stricken. Still, we condone the brief to the extent of passing upon such questions as appear to be necessary. We find no error prejudicial to appellant, and the judgment is affirmed. Affirmed. Footnotes [1] 218 Ala. 520.