Dreyfus Bros. v. Davis

[668] This suit was instituted by the appellee, Davis, against appellants, Dreyfus Bros.,' under section 1066 of the Code of 1896, and sought to recover the statutory penalty therein fixed, on the failure on the, part of the defendants, as the complaint alleges, to enter the fact of payment or satisfaction on the record of a mortgage given by Davis to Dreyfus' Bros. On the trial, the request of the plaintiff for the cancellation of his mortgage and which was'contained in a letter written by the plaintiff to the defendants asking the latter to quote to him his best cash prices upon cider and malaga grapes, was in' the following words: “Please cancel my mortgage which you hold against me.” This was the only request made by the plaintiff to the defendant to cancel the mortgage, referred to in the evidence. The defendant requested the court to give to the jury, among others, the general affirmative charge in their favor, and duly excepted to the court’s refusal to give said. charge as asked. There were verdict and judgment for the plaintiff. Upon the authority of Chattanooga Nat. B. & L. Asso. v. Echols, 125 Ala., 548 the court holds that the .request made by the plaintiff of the defendants for the cancellation of the mortgage was not sufficient, and that the genéi’al affirmative charge requested by the de-' fendants should have been given. The judgment is reversed and the cause remanded. .Opinion by McClellan, G J.