Espalla & Haynie v. Wilson, Sage & Co.

CLOPTON, J. We do not deem it material to consider the demurrer to the special count of the complaint; for, if conceded to be defective, it does not necessarily operate a reversal of the judgment. The complaint contains also the common counts. The special count claims of the defendants as acceptors of a bill of exchange. After following the form in such case prescribed by the Code, the special count sets out, in hcec verba, the draft or bill of exchange sued on, without showing an acceptance written thereon. The plaintiffs may recover under the special or common counts. The only difference is, that under the special count, the draft was receivable in evidence without preliminary proof of its execution, unless denied by verified plea, which was not filed; under the common counts, proof of execution was requisite to the admission of the draft in evidence. True, it was received without such proof; but, its execution having been subsequently proved, cured the defect. It affirmatively appears from the record, that the plaintiffs established by satisfactory proof their right to a recovery on the common counts, though the special count had been omitted or stricken out; and the defendants had had the full benefit of every defense which they could have made under the special count. Under these circumstances, if there was error in overruling the demurrer to the special count, it was without injury. Several of the assignments of error relate to overruling demurrers to the replications filed to the special pleas. The record shows a motion to strike out the replications, but no demurrer interposed. When a plea is merely defective, not frivolous, nor a nullity, the trial court may, in its discretion, refuse to entertain a motion to strike out, and put the party on his demurrer. The refusal to strike out the replications is not revisable on error. — Lankford v. Green, 62 Ala. 314. The court instructed the jury, that the burden was on defendants to establish their defense, and if the evidence left it in doubt and uncertainty, they must fail. The correctness of the charge, as an abstract proposition, is not contro [491] verted. But it is insisted, that the' evidence, prima fade, shows that the acceptance was an agreement to answer for the debt or default of another, and, not expressing the consideration, is within the statute of frauds, and that the burden of proof was thus shifted on plaintiffs. Defendants’ acceptance of the draft was given by Haughton, the drawer, in consideration of the rent of a store-house for twelve months, and was part of the original agreement to lease. It was not a collateral promise, but an original, substantive contract, founded on a present, valuable consideration moving to Haughton. No question as to the statute of frauds arises on the evidence. — Dunbar v. Smith, 66 Ala. 490. If the evidence presented such question, the defense, under the statute, must be pleaded; otherwise it is considered as waived; and if the contract sued on be established, it will be enforced —Jonas v. Fields, 83 Ala. 445; Lewis v. Teal, 82 Ala. 288; Shakspeare v. Alba, 76 Ala. 351. The defendants also set up the defense, that the lessor had failed to make repairs on the leased premises, as agreed upon; in consequence of which, the lessee abandoned them, after having occupied them several months. There being evidence tending to show that the lessor had put the premises in a tenantable condition, to the satisfaction of the lessee, the court instructed the jury, on this hypothesis, that plaintiffs were entitled to recover the rent for the full term. The rent was payable in monthly installments, and the installment for the first month had been paid. It is contended that the effect of the charge is, that plaintiffs were entitled .to recover the face amount of the acceptance, disregarding the payment made. In view of the defense and the evidence, we understand that the charge was intended by the court, and must have been so understood by the jury, as an instruction in respect to the extent of the liability of defendants — whether for the entire term of the lease, or only for the time the premises were actually occupied. The amount of the verdict shows that the payment was allowed. It may be, as counsel insist, that it exceeds the sum actually due by a few dollars; but, if so, the mistake arose from a miscalculation of interest, or error in the addition, and not from a disallowance of the payment. The correction of such error, if its exists, was for the Circuit Court, and can not be revised on appeal. The record presents no reversible error. Affirmed.