Opinion
8 Div. 9.
May 17, 1917.
Appeal from Circuit Court, Lauderdale County; C. P. Almon, Judge.
Paul Hodges and S.W. Frierson, both of Florence, for appellant. Mitchell Hughston, of Florence, for appellee.
Action on a promissory note brought by appellee as administratrix of J. J. Stutts, deceased, against appellant as administrator of B. F. Chisholm, deceased. The statutes of limitations of six and ten years were pleaded, and the questions litigated related to payments which appellee, to meet the plea, claimed had been made from time to time.
No tenable objection was taken to appellee's testimony to the effect that not more than two or three years had elapsed between the payments made by appellant's intestate. It was not necessary that partial payments should be indorsed on the note or evidenced by written receipts; it was competent to prove them by parol. 8 Encyc. of Ev. 336. The other objection taken to this testimony, as interpreted in the brief, went to its probative force rather than its competency. We find no error here.
The exception made the basis of assignment of error numbered 3 cannot be sustained. The exception must be construed most strongly against the exceptor. A part at least of appellee's testimony, to which the objection was made, was competent because it related to transactions between appellee's intestate and appellant's intestate which, for aught appearing, came to the knowledge of the witness otherwise than through her personal dealing with appellant's intestate. Warten v. Black, 195 Ala. 93, 70 So. 758. The objection, conceding that it was taken in time — though the bill of exceptions indicates that objection was withheld until questions giving notice of the matter sought had been asked and answered — was too broad. It included unobjectionable matter.
Appellant's fourth and fifth exceptions — the fourth and fifth assignment of error — went to the probative force of the testimony objected to. The testimony was competent and relevant, and error cannot be predicated on the court's refusal to exclude it.
No exceptions appear to have been reserved to the action of the court in overruling appellant's motions made the subject of the sixth, seventh, and eighth assignments of error, and for this reason they cannot be reviewed. It may, however, be further said that these motions which sought to exclude previously admitted testimony, were either too broad, as in the case of the third assignment, or went merely to the weight of the evidence, as did several of the original objections.
There is no merit in the ninth assignment. The question whether the statute of limitations had perfected a bar was a question of fact, as to which we can by no means say the court below, trying the case without a jury, made a mistake. This much ascertained, the burden of showing to what extent payments had reduced the indebtedness, that is, the amount of the credits, was upon appellant. Considering the case with reference to that burden, it appears that at least the principal of the debt evidenced by the note was due and unpaid. It cannot be held for reversible error that the trial court, with probably too much favor to appellant, allowed the payments shown to cancel the claim for interest.
Affirmed.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.