Opinion
6 Div. 902.
October 8, 1936.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Erle Pettus and Erle Pettus, Jr., both of Birmingham, for appellants.
The evidence shows that credit was extended directly to insured, and that premiums never came into the hands of appellants. They were, therefore, entitled to the affirmative charge. In re Mason Co. (D.C.) 254 F. 164; Monitor Mut. F. I. Co. v. Young, 111 Mass. 537; Clausen v. Title Guaranty Surety Co., 168 App. Div. 569, 153 N.Y.S. 835. No such money having been shown to have come into the hands of appellants and not paid by settlement to appellee's auditor, appellants were entitled to the affirmative charge on the count for money had and received. Levinshon v. Edwards, 79 Ala. 293; Hudson v. Scott, 125 Ala. 172, 28 So. 91; Farmers' Bank Trust Co. v. Shut Keihn, 192 Ala. 53, 68 So. 363; Nelson v. First Nat. Bank, 139 Ala. 578, 36 So. 707, 101 Am.St.Rep. 52. The statement purporting to acknowledge indebtedness is void under the statute of frauds for failing to recite a consideration. Code 1923, § 8034; Rains v. Patton, 191 Ala. 349, 67 So. 600. It is void for uncertainty and because made after termination of the agency. Goodwin v. Adler, 220 Ala. 69, 124 So. 108; Clausen v. Title Guaranty Surety Co., supra. A new trial should have been granted on appellant's motion. Code 1923, § 9518 (6).
Victor H. Smith, of Birmingham, for appellee.
An account stated is an assent to the balance, express or implied, so that the demand is essentially the same as if a promissory note has been given for the balance. Reed v. Robinson, 213 Ala. 14, 104 So. 130; Webb v. Lowe Co., 215 Ala. 552, 112 So. 138. There being a conflict in the evidence, a case was made for the jury. Williams v. Shows, 187 Ala. 132, 65 So. 839; McMillan v. Aiken, 205 Ala. 35, 88 So. 135; Messer v. Dupuy-Burke Realty Co., 226 Ala. 438, 147 So. 193; Chestang v. Kirk, 218 Ala. 176, 118 So. 330; Birmingham W. W. Co. v. Barksdale, 227 Ala. 354, 150 So. 139. Error, if any, in refusing the affirmative charge as to count 4 was harmless, as the verdict was referable to other counts. Bank of Ramer v. Derden, 211 Ala. 666, 101 So. 594; Brown v. Leek, 25 Ala. App. 497, 149 So. 854; Id., 227 Ala. 312, 149 So. 855.
The appellants were the local agents of the appellee for several years, the agency terminating December, 1932, when appellee withdrew its business in the state. It seems that subsequent to the termination of the agency the appellee and appellants had negotiations looking to an adjustment between them as to what was due by the appellants to the appellee for the unpaid premiums collected, or which should have been collected, by appellants. It appears that an agent of the appellee and one of the defendants had a conference and, after going over and checking up the books, finally agreed upon the balance due the appellee and Binford, one of the defendants and a member of the firm, executed the following acknowledgment and obligation:
"We hereby acknowledge the statement of indebtedness presented by your Mr. J. L. Brandmaier, amounting to $3,139.87 as being correct. This amount has accrued from delinquent balance of our agency. At the present time we are unable to pay the whole or any part of it. However, we faithfully promise that if the cotton market is fairly favorable this fall, we will pay our entire indebtedness, or at least a very substantial payment thereon, by November first 1933.
"We exceedingly regret the delay in clearing this balance, however we assume that you are fully aware of our circumstances.
"Yours truly, Penney-Binford "By R. T. Binford
"Acknowledged before me, as Notary Public in and for Jefferson County, State of Alabama, this the 17th day of July, 1933.
"Emma Gideon, Notary Public [Seal]"
This was an assent to the amount due from the appellants and was an account stated and was essentially the same as if a promissory note had been given for the amount. Reed v. Robinson, 213 Ala. 14, 104 So. 130; Webb v. J. R. Lowe Co., 215 Ala. 552, 112 So. 138.
The signor of the foregoing, as a witness, attempted to explain and qualify the contents of same and to show that the admission referred to an indebtedness from J. E. Penney, a third person, and not to one against the firm of Penney Binford who had been released by the plaintiff. His testimony, however, at best for defendants, merely created a partial conflict in the testimony and presented questions properly left to the jury by the trial court. There was therefore no error in refusing the general charge as requested by the defendants.
It is contended by appellants' counsel that the defendants were due the general charge as to the count for money had and received upon the idea that they had not actually collected the premiums. It is sufficient to say that it was open for the jury to find that defendants had collected some premiums which had not been sent to the plaintiff. The list shows policies issued to others than J. E. Penney, and if defendants collected any premiums which should have been remitted to the plaintiff and which were not made, and regardless of the amount, they were not entitled to the general charge as to the count for money had and received.
The instrument signed by Binford does not appear upon its face to be a promise to answer for the debt or default of another. It was the mere acknowledgment of a debt and a promise to pay of the defendants to the plaintiff and was not objectionable as evidence for the failure to express a consideration under the statute of frauds, and as to whether or not it was for the debt of another was an issue for the jury and which issue was fairly presented to the jury by defendants' given charges B. and Y.
The trial court did not err in refusing the defendants' motion for a new trial. The verdict of the jury was not contrary to the weight of the evidence, but we think the weight was in support of the verdict. Cobb v. Malone, 92 Ala. 630, 9 So. 738.
The judgment of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.