Opinion
7 Div. 376.
October 4, 1938.
Appeal from DeKalb County Court; W. J. Haralson, Judge.
Action to recover for materials furnished and to establish materialman's lien by G. B. Everett against W. S. Killian. From a judgment for plaintiff, defendant appeals.
Affirmed.
Isbell Beck, of Fort Payne, for appellant.
Counsel argue for error in rulings on evidence and refusal to give the affirmative charge or grant a new trial at defendant's request.
C. A. Wolfes, of Fort Payne, for appellee.
Counsel argues that there was no error in the rulings on evidence assigned and argued in brief; that the sole issue involved was one of fact for the jury, under the plea of the general issue, no evidence having been offered to sustain the plea of set-off.
The complaint in this case sought to recover a money judgment for an amount alleged to be due plaintiff by defendant for building material furnished; and also for the enforcement of a material man's lien upon the house described in the complaint as belonging to defendant. This complaint was sufficient, and not subject to the demurrer interposed by defendant, which was properly overruled.
The defendant interposed the plea of the general issue, and (2) "that at the time this action was commenced the plaintiff was indebted to defendant in the sum of $250.00 by account, which he hereby offers to set off against the demands of the plaintiff and he claims judgment for the excess." There was no plea of payment, nor was there any testimony offered or any effort made to sustain above quoted plea of set-off.
The trial of this case involved a question of fact only. The plaintiff offered evidence to sustain his complaint, and the defendant denied the testimony of the plaintiff; thus making a question of fact for the determination of the jury.
The jury, under proper instructions of the court, returned its verdict finding the issues in favor of the plaintiff on the two propositions involved and judgment was rendered accordingly.
Appellant assigned several grounds as error, but the view we take of this case is that it involved merely a question of fact, and if it be conceded that error intervened, the opinion here prevails that the error was of a technical character that did not vitally affect the substantial rights of the parties.
Under the conflicting evidence the affirmative charge requested by the defendant was inapt and properly refused.
The judgment from which this appeal was taken will stand affirmed.
Affirmed.