Horton v. Miller & Bro.

STONE, C. J. This suit was commenced by attachment, and is governed by §§ 3056 (3467) and 3075 (3479), Code of 1886. The affidavit for attachment is very defective, and if the objection had been raised at the proper time, the attachment ought to have been dissolved. It is not shown, however, that the question was made before the justice of the peace. It was too late to raise it after the case was carried to the Circuit Court by appeal. — Staggers v. Washington, 56 Ala. 225. But the appeal did not change the character of the suit. It was still an attachment proceeding, instituted under §§ 3467, 3480 of the Code of 1876. Only such right could be asserted as is conferred by § 3479 of that Code; and to justify its maintenance, the statutory conditions must have existed, and must have been substantially set forth in the complaint. — Code of 1876, § 3479; Code of 1886, § 3075. The plea in abatement filed to the complaint, ought to have been entertained. — Wright v. Snedecor, 46 Ala. 92; Summerlin v. Dowdle, 24 Ala. 428. In Mooney v. Hough, at the present term, 84 Ala. 80, we had occasion to consider and construe § 3075 (3479) of the Code of 1886, and to determine its extent. We refer to that case as an interpretation of the statute, and we do not propose to repeat what we then said. Code of 1886, § 3057 (3468): “Unless otherwise stipulated, such rent and advances shall become due and payable on the 25th day of December of the year in which the crop is grown.” This section applied to the claim we are considering; but if there was an agreement that the advances should be paid out of the crop, the claim for balance of advances would mature when the crop was marketed, or ready for market. [540] The defense of recoupment ought to have been entertained. If by the terms of the agreement Miller & Bro. agreed to furnish land which they did not furnish, or to furnish two good horses, and furnished inferior ones, either of these was a breach of their contract, the actual damages resulting from which furnishes ground of defense. — Wilkinson v. Ketler, 59 Ala. 306; M. & M. Railway Co. v. Clanton, Ib. 392; Wilkinson v. Keller, 69 Ala. 435; Culver v. Hill, 68 Ala. 66; Vandegrift v. Abbott, 75 Ala. 487; Sledge v. Swift, 53 Ala. 110. T. G. Miller should not have been allowed to testify to entries made in .the books by his brother, unless he had knowledge that the sales were actually made, or, unless he could show in some other way that he knew the entries spoke the truth. As to the orders, and in whose name they were drawn, that was immaterial, provided the goods obtained under -them were an advance by Miller & Bro. That would be the case, if the articles furnished under them either belonged to Miller & Bro., or were supplied on their joint account. What we have said will be sufficient guide for another trial, without commenting on the charges given and refused. - Reversed and remanded.