7 Div. 295.
April 6, 1922.
Appeal from Circuit Court, Calhoun County; S.W. Tate, Judge.
Knox, Acker, Sterne Liles, of Anniston, for appellant.
The fourth and fifth pleas were proven without dispute, and the defendant should have been given the affirmative charge. 192 Ala. 486, 68 So. 815; 200 Ala. 241, 76 So. 7; 194 Ala. 152, 69 So. 518; 86 Kan. 154, 119 P. 322, 39 L.R.A. (N.S.) 487; 23 C. J. 47. A new trial should have been granted. 204 Ala. 332, 85 So. 390; 57 Ala. 521; 102 Ala. 387, 14 So. 854.
Lapsley Carr, of Anniston, for appellee.
Counsel point out the controlling facts in the cases cited and relied on by appellant and conclude that they are differentiated from the case at bar, but they cite no additional authorities.
If there was error in sustaining the demurrer to defendant's third plea, it was without prejudice, since defendant had full advantage of the same defense under his amended and additional pleas.
It is insisted that the trial judge erred in refusing to give for defendant the general affirmative charge as requested; the argument being that the evidence fully sustained defendant's pleas of payment, or of accord and satisfaction, and that the evidence in that behalf was without any material conflict. We think, however, that plaintiff's testimony that defendant still owed him the balance of $200, though in a sense a testimonial conclusion, was sufficiently in conflict with the defensive evidence relied on to require the submission of the issue to the jury.
Nevertheless we are constrained to the conclusion that the testimony before the jury could not reasonably authorize a verdict for plaintiff, and that it must have been founded on inapt sentimental considerations, or on prejudice or mistake. While, as already stated, plaintiff's statement that defendant still owed him the money was in a general legal sense contradictory of the affirmative defensive testimony offered by defendant, yet it was obviously a mere legal conclusion, and not specifically contradictory of the facts offered in avoidance of the original obligation to pay. And when to this is added the consideration — very weighty here, we think — that plaintiff, after hearing the adverse testimony as to his agreement for the disposition of the money in question, and his admissions thereafter, did not undertake to make any denial of its veracity, nor to contradict it in any way, though he had the opportunity to do so, the conviction of its veracity seems unavoidable, and its rejection not authorized by anything before the jury.
We are not forgetful of the considerations which govern this court in dealing with motions of this sort, where there is a substantial conflict in the evidence, and the trial judge has refused to interfere with the verdict. But here the conflict is technical rather than real, and its substance is dissipated by the failure of plaintiff to make any specific denial of the defensive facts testified to by the other witnesses, and which, if true, must defeat his right to recover.
For the reasons stated, the motion for a new trial should have been granted. It results that the judgment overruling the motion must be reversed, and a judgment will be here rendered granting the motion, with remandment for another trial.
Reversed, rendered, and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.