Scarbrough v. Borders & Co.

HARALSON, J. 1. The rulings of the court in overruling plaintiff’s demurrers to the 2, 4 and 5 pleas of defendants, are not insisted on in argument, and are to be treated, therefore, as waived. 2. The cause was submitted to the court for decision, a jury having been waived. If there was error in overruling plaintiff’s demurrer to defendants’ special plea filed 23 March, 1896, — which we do not consider, — it was error without injury. The only effect of this plea, [440] so far as objected to on demurrer, was, to put the plaintiff on proof of the transfer to him of the note sued on, and this proof was made by Mm and the note admitted in evidence without obj ection by defendants. His position was no worse than if the plea had not been interposed. L. & N. R. R. Co. v. Trammell, 93 Ala. 350; Crawford v. Payne, 102 Ala. 387 ; Middleton v. Wilson, 84 Ala. 264. The motion to strike out of the plea, the words “and assigned to plaintiff,” does not appear to have been acted on by the court, and is, therefore, not a matter for review. 3. The plaintiff replied to plea No. 4, and alleged that A. E. Hughes, the original payee'of the note in suit, prior to February, 1889, and since, was a married woman, the wife of W. B. Hughes with whom she lived, and she did not contract in writing with defendants for any goods, wares and merchandise with her said husband’s written consent and concurrence in writing. The defendant demurred on grounds, that coverture is a personal defense, and not available to plaintiff in this action, and that the contract of a married woman without written consent of her husband is voidable only, not void, and can only be raised or insisted on by her. A wife may or may not plead coverture as defense when sued on a contract executed by her alone. Like infancy or usury, it is a personal defense, which can be interposed alone by her, or her personal representative. Strauss v. Glass, 108 Ala. 546 ; Marion v. Regenstein & Co., 98 Ala. 475 ; Shropshire v. Burns, 46 Ala. 108 ; 14 Am. & Eng. Encyc. of Law, 660. The plaintiff had no right to plead Mrs. Hughes’ coverture to defeat the amount of an account, contracted by her with defendants, which account it is insisted was used and accepted by Mrs. Hughes and her husband, in settlement of the note sued on, prior to its transfer or notice to the defendants of its transfer to plaintiff by Mrs. Hughes, and which was offered to show settlement of plaintiff’s demand before he acquired the same. By the assignment of the note to plaintiff by Mrs. Hughes, she did not transfer to him the right to make this plea to that account, when offered, in the manner and for the purpose it was. The case was tried on issue joined on defendant’s several pleas. 4. The court rendered a judgment on the evidence in [441] favor of defendants. We will not review the evidence. It was not free from conflict. The rule in such cases is, not to disturb the judgment unless it is plainly erroneous. The judgment was not only not plainly erroneous, but in our judgment was correct on the evidence introduced. Nelson v. Larmer, 95 Ala. 300 ; Woodrow v. Hawving, 105 Ala. 248. 5. On the trial by the court without a jury, error in the admission of evidence will not work a reversal, if the judgment rendered is sustained by the legal evidence. We need not consider the assignment of error touching the admission of evidence, since if the judgment is right on all the evidence, the admission of illegal evidence was not injurious.—Holmes v. The State, 108 Ala. 24; Ramey v. Peeples Grocery Co., 108 Ala. 477; Woodrow v. Hawving, supra. Affirmed.