Waxelbaum & Son v. Bell

McCLELLAN, J. We find no error in the admission of the note and mortgage executed by John F. Bell, Sr. to the John McNab Bank. The evidence tended to show that the note was given for money borrowed in February, 1888, by Bell, as the agent of his wife, the present claimant; that the mortgage, though signed alone by Bell, covered his wife’s property, and that the money so borrowed belonged to the'wife. About, or after the time of this transaction, the evidence further tended to show the husband loaned money belonging to his wife to the defendants, Bell & Stallings, the sum or sums so loaned constituting, with $1,700 advanced in the previous December, the debt due from that firm to the claimant, which, it is alleged, was satisfied by the sale to her of their stock of goods in September, 1889. Plaintiffs in attachment having-made out a prima facie case, the onus was upon the claimant to show that she had a bona fide debt against the defendants, in payment of which she took the goods at a fair valuation. Her ability to make the loans to defendants — the fact that she had funds which could be so applied — was relevant to the inquiry. The note and mortgage in question, explained as they were by the witness Bell, tended to show that she had the means necessary to the creation of the debt, and hence, in some degree, to establish its bona fides; and were properly allowed to go the jury. If these papers were objectionable as evidence upon any special ground, it was not brought to the attention of the trial court, the objection there made being entirely general; and it will not avail now to operate a reversal of the cause.—Carlisle v. Killebrew, 89 Ala. 329. We have carefully examined the several charges given at the request of the claimant, and find them free from reversible error. It may be that some of them, while asserting correct legal propositions, had a tendency, when referred to the facts of the case, to mislead the jury; but, if so, explanatory instructions should have been asked. This is, perhaps, true Avith respect to the charge No. 4 which, Avhile correctly casting-on the plaintiff the burden of proving that the property levied on was at the time of the levy the property of the defendants (Code, § 3007; Foster v. Goodwin, 82 Ala. 384; Wollner v. Lehman, 85 Ala. 274), may have misled the jury to the conclusion, that the onus remained with the plaintiffs throughout the trial, Avlien it very clearly appears that the burden was shifted to the claimant, by proof on plaintiffs’ part that the defendants were insolvent, that their debt antedated the bill of sale under Avhich Mrs. Bell claimed, and that by that bill of sale the defendants sold substantially all of their property to [334] her, on the recited consideration of a debt due from them to her. If the plaintiffs apprehended this result, they should have requested a charge in explanation which would have obviated it.—Smith v. State, 86 Ala. 28; Blackburn v. State, Ib. 595. Others of these charges, as for instance, Nos. 5 and 6, are objectionable, because argumentative; but this infirmity would not require a reversal of the judgment. The judgment of the Circuit Court is affirmed.