
    Fletcher vs Dulaney.
    Opinion delivered January 8, 1898.
    1. Pleading — Indefiniteness—How Corrected.
    
    The proper remedy to cure indefiniteness and uncertainty in pleading is by motion and not by demurrer.
    
      2. Peremptory Instruction.
    
    Evidence having been given tending to show a full payment of the notes sued upon, a peremptory instruction for plaintiff was properly refused.
    
      
      3. Instruction— When Not Error to Rejuse.
    
    It is not error to refuse an instruction when the court’s general charge embodies the same principles as those in the instruction in question.
    
      ‡. Evidence — Custom—Error.
    It is not competent to permit evidence to be given of the custom which defendants had observed in reference to their other creditors, and the admission of such evidence was prejudicial error.
    Appeal from the United States court for the Southern district.
    C. B. Kilgore, Judge.
    Suit by John S. Fletcher upon promissory note against H. N. Dulaney and an other. Judgment for defendant. Plaintiff appeals.
    Reversed.
    This it a suit brought by appellant (plaintiff below) against appellees (defendants below) upon certain promissory notes executed by defendants, and fully described in plaintiff’s amended complaint, it being alleged that the plaintiff is the owner and holder of said notes. Defendants demurred to plaintiff’s complaint, and, their demurrer being overruled, answered, admitting the execution of the notes sued upon, by pleas of payment, and a plea of the statute of limitations as to two of the notes. To this answer plaintiff filed general and special demurrers, which demurrers (after agreement of counsel that said amended answer should be considered as further amended by the addition of an allegation that defendants kept no book of accounts, either of goods received or payments made to Cleaves & Fletcher, but depended entirely upon the bookkeeping of said Cleaves & Fletcher for payments made, and that said receipts had been lost or destroyed, and they could not plead such payments with any more certainty for such reasons) were overruled, to which ruling plaintiff duly excepted; whereupon it was agreed by counsel that plaintiff denied all new and affirmative matter in defendants-’ said amended answer, and the parties went to trial. The court held the burden of proof to be upon the defendants, and gave them the opening and the closing both in the introduction of testimony and the argument. The substance of the testimony is set out in the bill of exceptions. After the introduction of testimony, plaintiff requested two special charges, each of which was refused by the court. To each refusal plaintiff excepted. The jury then, after hearing the charge of the court and the argument, returned a verdict for defendants. This was on April 17th, and on the 20th plaintiff filed a motion for a new trial, and on the 22nd his amended motion for a new trial, which motion was overruled by the court, exceptions saved, petition for appeal granted, and, by order of the court, plaintiff was given 60 days in which to prepare and file his bill of exceptions.
    
      A. Eddleman, for appellant. .
    
      W. B. Johnson and A. G. and Lee Gruce, for appellees.
   Springer, C. J.

(after stating the facts). The appellant submits six assignments of error in this case, as follows: “First, the court erred in overruling plaintiff’s general demurrer to defendants’ answer; second, the court erred in overruling plaintiff’s special demurrers to defendants’ amended answer; third, the court erred in refusing plaintiff’s first requested instruction; fourth, the court erred in refusing plaintiff’s second requested instruction; fifth, the court erred in admitting, over plaintiff’s objection, the testimony of the witnesses Tom Williams, W. H: Brady, Whit Hyden, and Dr. A. J. Wolverton, as to defendants’ character for promptness in paying their debts; sixth, the court erred in overruling plaintiff’s amended motion for a new trial. ”

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Instruction. Properly re-• fused.

Not error to refuse special instruction embodied in court’s general charge.

The general and special demurrers referred to in the first and second assignments of error were properly overruled. Some of the allegations in the answer might have been stricken out as surplusage, and plaintiff might have moved the court to require the defendants to make their allegations more definite and certain, but demurrer was not the proper remedy to cure such defects.

The first instruction that the plaintiff requested the court to give the jury was that the jury should find for the plaintiff the amount sued for. This instruction was properly refused, there having been evidence submitted to the jury tending to show full payment of the notes sued upon.

The fourth assignment of error is based upon the refusal of the court to submit to the jury plaintiff’s second requested instruction .mb. is as follows: “Gentlemen of the Jury: The only question for you to determine in this cause is whether the defendants are entitled to any credit upon the notes sued on, not allowed and credited thereon by the plaintiff; and the ’t propounds to you this query: ‘Did the defendants, or either of them, or any one upon their behalf, ever make any payment of money or property not allowed by plaintiff, and credited upon said notes?’ If you answer this question in the negative, you need go no further; but, if you should answer the same in the affirmative, you will then find the dates and amounts of such payments.” It was not error to refuse this instruction, in view of the general charge given to the jury by the court. It might, however, have been error to have refused it had the court not given an instruction embodying substantially the same principle. This instruction, in view of all the facts of the case, is too restricted in its directions. It was contended on the part of the defendants that they had more than paid the amounts due upon the notes, and were entitled to judgment for the amount of excessive payments. The instruction requested also required the jury to find “the dates and amounts of such payments. ” It was in evidence in the case that the only books in which the payments were entered were kept by the plaintiff, and that he had adopted the double entry system of bookkeeping. The evidence disclosed the fact that the defendants were unable to fix the dates and amounts of their repective payments. If the jury had believed, however, from all the evidence in the case, that the notes had been paid in full, the defendants would have been entitled to a judgment in their favor, notwithstanding they might not have been able to show the exact dates and the exact amount of each payment. It was not error, therefore, to refuse the instruction which was requested, in view of the evidence in the case. No exceptions were taken to the court’s general charge to the jury in the case, and it is therefore conceded that such charge was correct.

The fifth assignment of error is to the effect that the court erred in admitting, over plaintiff’s objection, the testimony of the witnesses Ton Williams, W. H. Brady, Whit Hyden, and Dr. A. J. Wolverton as to defendants’ character for promptness in paying their debts. In order to understand fully this contention, .it will be necessary to refer to the testimony of the witness indicated. Thomas Williams, a witness called by defendants in rebuttal, testified, among other things, as follows: “Q. What was the custom of Dula-ney Bros., with reference to payment of their bills? A. Were prompt.’’ The Witness had already testified to the fact that he had for three or four years been accustomed to dealing with the defendants in a business way. W. H. Brady, a witness called by defendants in rebuttal, testified, among other things, as follows: “Q. Did you ever have any dealings with Dulaney Bros.? A. - Yes sir. Q. What custom did they observe in the payment of their bills? A. Very prompt. Q. For how long a time did you have dealings with them? A. At Ardmore, and for the last several years. When I had an account against them, they either came in and paid it, or I didn’t have to wait long for it. ” Whit Hy-den, a witness called by defendants in rebuttal, testified, among other things as follows: ‘‘Q. Did you ever have any dealings with Dulaney Bros.? A. Yes, sir. Q. For how long a time? A. I have sold them goods off and on up to 8 years ago. Sold William Dulaney quite a bill of goods about 8 years ago. Q. What custom did they observe as to the payment of their bills? A. Very prompt. I don’t think I ever had to dun them. I don’t believe I did. Q. Did they always pay their bills. A. Yes, sir. I think they did. Q. Paid everything they owed? A. Yes, sir; paid all off as far as I know.” Dr. A. J. Wolverton, a witness called by the defendants in rebuttal, testified among other things, as follows: ‘‘Q. Did you ever have any dealings with Dulaney Bros.? A. Yes, sir; they had an account with me. Q. What custom did they observe in settling their bills and drafts? A. Very prompt.”

The questions put to each of these witnesses, and their answers thereto, were severally objected to by the plaintiff, as immaterial, and as not tending to show payment. The objections were overruled by the court, and the testimony was permitted to go to the jury. It is unnecessary to submit authorities to support the proposition that the testimony above set forth was incompetent, and prejudicial to the rights of the plaintiff. In the case at bar, the plaintiff sued the defendants on certain promissory notes. Defendants submitted pleas of payment. The burden of proof was upon them to establish payment of the notes in whole or in part. The plaintiff submitted his mercantile books showing credits for all payments made by defendants in money or property. The books were kept by a bookkeeper, and clearly showed a balance due on the notes as claimed by plaintiff. Defendants, were unable to specify payment of property or money other than those set forth in plaintiff’s books. The effort, therefore, to prove payment by the custom which the defendants had observed in reference to their other creditors, was utterly incompetent, and the testimony should not have been permitted to go to the jury. The consideration of this incompetent testimony by the jury, and the comments made by counsel in reference to the methods of keeping books practiced by the plaintiff, are cited by counsel for plaintiff as the only explanation which could be given for the verdict for the defendants in this case We are of the opinion that the testimony was incompetent, and prejudicial to the plaintiff’s rights, and its admission was reversible error. The judgment of the court below is reversed, and the case remanded.

Evidence, of custom of payment incompetent.

Clayton, Thomas, and Townsend', JJ., concur.  