
    McLendon v. Rubenstein.
    
      Assumpsit.
    
    (Decided April 17, 1913.
    61 South. 902.)
    1. Appeal and Error; Favorable to Appellant. — An appellant cannot complain of error of the trial court favorable to him.
    2. Set-Off and Counter Claim; Mutuality of Claim. — A plea attempting to set up a cause of action against a third party as a set-off or recoupment is not sufficient where it does not properly connect such third party with the plaintiff, or show that plaintiff was liable for the acts of such third party.
    3. Landlord and Tenant; Recoupment; Sufficiency. — Where the action was for rent, a plea recouping damages because of the loss of a sub-tenant, caused by a notice to quit given to defendant by plaintiff, is insufficient where there was no showing that plaintiff did not rightfully give notice to quit, as the presumption is that such notice to quit was rightfully given.
    4. Same; ReiMcation. — Where the action was for rent, and the pleas were recoupment because of the loss of the sub-tenant on account of notice to quit, replications setting up that defendant had no right to sub-rent, that his tenancy was at will, and that the landlord had a right to terminate his tenancy at any time by giving notice as he did, and that defendant had not rented the premises for the period for which he sub-rented it, and therefore had no right to sub-rent, stated a complete defense to the plea and was not demurrable.
    5. Evidence; Best and Secondary; Letter. — Where the question did not call for the contents of the letter, but only for the fact of the existence or receipt of the letter, a witness is properly permitted to testify as to such a letter received by him from the adverse party.
    6. Trial; Objections; Time. — Where a question calls for competent evidence it must he objected to before it is answered, else the objection comes too late.
    Appeal from Crenshaw Circuit Court.
    Heard before Hon. A. E. Gamble.
    Action by Sam Rubenstein against J. C. McLendon to recover rent, begun by attachment. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The defense was as set up in plea 3, as amended, that defendant had rented from Mrs. B. G. Rubenstein a certain bouse and lot situated in Enverne from tbe 1st day of September, 1909, to tbe 1st day of September, 1910, and that this suit was brought to recover tbe alleged rent due on said bouse and lot, but soon after defendant rented said bouse and lot from Mrs. Ruben-stein, and while be bad tbe same rented, be subrented a portion thereof to one Willis Woods at tbe agreed rental of $10 per month for eight months, and that before Woods bad moved in or taken possession, but after tbe rental contract was made, Mrs. Rubenstein served tbe defendant with notice to quit and vacate said bouse and lot, and on account of same tbe said Woods refused to take, rent, or lease a portion thereof, and tbe defendant lost tbe agreed rental, which was $80, and that be offers to set off tbe same against tbe demand of tbe plaintiff. Tbe same statement of facts is contained in plea 4, and on them is based an offer to recoup. Tbe fifth plea states tbe facts in a different way, but materially conforming to tbe facts as stated in plea 3, with tbe additional allegation that, on account of tbe said notice, defendant was unable to rent said portion, to bis damage in tbe sum of $80, which be offers to set off. Tbe main difference between pleas 5 and 6 and 3 and 4 is that tbe word “plaintiff” is substituted in tbe place of Mrs. Rubenstein, where that name occurs in pleas 3 and 4.
    Replications to which demurrers were overruled were as follows:
    .“(1) That tbe contract under which defendant held tbe bouse did not permit tbe defendant to sublet any part thereof, but on tbe contrary expressly provided that tbe bouse should not be sublet.”
    “(5) That plaintiff is not now nor has be ever been indebted to defendant in any amount.
    
      
      “ (6) Defendant was a tenant at will, and under the terms of the contract either party had a right to terminate the tenancy by serving the opposite party with written notice, giving 30 days’ notice of an intention to terminate the contract.
    “(7) Defendant had not-rented the premises for the period set out in the plea, and hence was without legal right to enter into a contract with Woods for renting any part of the house or premises for the period set out in said plea.”
    M. W. Bushton, for appellant.
    The court erred in overruling demurrers to the replications to the special plea of recoupment. — Fidelity M. L. I. Go. v. Batson, 136 Ala. 334; Adams v. Thomas, 54 Ala. 175; Barber’s case, 60 Ala. 433. The 5th replication should have been stricken. — Watson v. Kirby, 112 Ala. 436. It is no more than a general replication, and merely joins issue on the pleas. — Wright v. Forgy, 126 Ala. 389; Bridges v. T. G. I., 109 Ala. 287; Lee’s case, 102 Ala. 628. The 6th replication was clearly subject to demurrer. — Zirlole v. J ones, 129 Ala. 444; Matthews v. Farrel, 140 Ala. 298; George v. M. AO., 109 Ala. 243, and authorities supra. The 7th replication was subject to the motion to strike and to the demurrers. — MoKimmie v. Forbes P. Go., 155 Ala. 261; Lee v. JDeBardelaben, 102 Ala. 628; Owensboro W. Go. v. Hall, and authorities supra. The court erred in permitting the evidence as to the letter. — St. Glair Go. v. Smith, 112 Ala. 347.
    W. EE. Stoddard, for appellee.
    No brief reached the Beporter.
   MAYFIELD,. J.

The action is to recover rent for a storehouse. There were two counts, one special and one common. The defendant pleaded the general issue, payment, set-off, and recoupment.

Demurrers were sustained to pleas 3 and 4, which were, respectively, set-off and recoupment. These pleas were subsequently amended, and two other pleas, numbered 5 and 6, were added, to all of which demurrers were overruled. To these pleas plaintiff filed eight special replications. The defendant moved to strike these replications. This motion being overruled, he demurred to each of the special replications. The court sustained the demurrer to replications 2, 3, and 4, and overruled it as to 1, 5, 6, and 7. The defendant complains as. to each of these adverse rulings and assigns the same as error.

There was no reversible error as to any of these rulings of which the defendant does or can complain. Whatever reversible error there was, if any, as to the rulings on the pleadings, was favorable to the defendant; and of this he cannot complain.

The pleas as to which demurrer was sustained attempted to set up a cause of action against a third party as a set-off or recoupment to this action, without properly connecting the plaintiff with the matters set up in said pleas, and without showing, in any manner, that the plaintiff was liable for the acts of such third party. It is therefore too plain to require argument that they set up no defense to this action of the plaintiff.

The defense attempted to be set up by pleas 3 and 4 as amended, and by pleas 5 and 6, was that the defendant subrented the leased premises to one Woods for eight months at $10 per month, and that, before Woods entered or paid his rent, one Mrs. B. Q-. Bubenstein, the original landlord, served notice upon the defendant to vacate the premises, and that on account of this notice Woods declined to take the premises or to pay the rent. These pleas, as amended, and pleas 5 and 6 were each insufficient as pleas of set-off or of recoupment. So far as appears from these pleas or from other parts of the record, the notice to vacate Avas proper and was no breach of any duty Avhieh the plaintiff owed the defendant. Construing the pleas against the pleader, we must presume that the act of the plaintiff or of Mrs. B. G. Rubenstein in giving the notice to vacate Avas proper.

The trial court, hoAvever, ruled in favor of the defendant (appellant here) and put the plaintiff to his replication. These replications, as to Avhieh demurrer Avas overruled, replied by merely setting up, affirmatively, the matters which sliOAved that the notice to vacate Avas properly given and Avas no breach of any duty which the plaintiff OAved the defendant. The first alleged that defendant had no right to submit the premises; the sixth that the lease contract was a tenancy at aauII, and that the plaintiff had the right to terminate it, on giving the notice complained of in these pleas; and the seventh alleged that the defendant had not rented the premises for the period for Avhieh he sub-rented to Woods, and therefore had no right to so sub-rent to Woods. Each of these replications was a complete ansAver to any right of action in the nature of a set-off or recoupment, as attempted to be set up in the pleas; and there Avas no error in overruling the demurrer thereto.

There Avas no error in overruling the defendant’s objection to the question propounded to the plaintiff as to a letter he had received from the defendant. The question did not call for the contents of the letter, but only for the fact of the existence or the receipt of the letter, and no objection Avas made to the question until it was answered. The objection came too late. The defendant could not be allowed to speculate on what the answer Avou'ld be and, if unfavorable to him, to then object.

There was no error in refusing either of the defendant’s requested charges; they were in effect the affirmative charge for the defendant; and there was ample evidence to support the verdict rendered for the plaintiff. Likewise there was no error in overruling defendant’s motion for a new trial. We are not persuaded that any reason is shoAvn why the verdict and judgment rendered should not stand. While there is conflict in the evidence, there is ample evidence to support the verdict and judgment rendered. The plaintiff testified that the defendant admitted owing the amount sued for, and promised to pay it.

Finding no error the judgment is affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.  