
    O’Neal v. Curry.
    
      Action of Assumpsit.
    
    1. Set off; admissibility of evidence. — In an action of assumpsit, where the plaintiff pleads a set off, setting up that the plaintiff was due him for articles of merchandise sold at his request, and the plaintiff by replication sets up that such articles of merchandise were sold to a third party and that the plaintiff had never promised by writing, expressing a consideration, to answer for the debt of said third party, it is not competent for the defendant, on cross examination of the plaintiff, to ask him whether or not he had made provisions for said third party to purchase such articles of merchandise from any 'other merchant than the defendant.
    2. game; same. — In such a case, where it is shown that the defendant let a third party who was a tenant of the plaintiff, have a certain amount of money only after the plaintiff had signed a note as security for his tenant, and that the articles of merchandise sold, the price of which was sought to be set off against the plaintiff’s demand, was separate and apart from the money given to defendant after tne execution of said note, it is competent for the plaintiff to show the circumstances under which the defendant gave the money to the tenant and that he refused to let the tenant have the money until the note was signed by the plaintiff.
    3. Same; same. — In such a ease, it is competent for the plaintiff to prove that he gave his individual note to the defendant for articles of merchandise which, he purchased from the defendant during the year in which the merchandise was sold to the plaintiff’s tenant.
    4. Evidence; admissibility of testimony showing feeling of witness towards party to suit. — In the trial of a civil case, where a witness for the plaintiff testifies to facts favorable to the plaintiff, and in answer to a question asked him upon cross examination, he answers that his feelings towards the defendant were good, it is not competent for the defendant to prove by him that prior to the time of his testifying the ' aefendant ■ had foreclosed a mortgage he held against said witness and had sworn out a warrant against him for removing mortgaged property, and that said witness had fled the country to avoid arrest under said warrant; these facts of themselves not implying avbad or revengeful feeling on the part of the witness towards the defendant at the time of the trial.
    6. Set off; burden of proof. — In an action of assumpsit, where the defendant interposes a plea of set off, the burden of proof is upon him to establish a set off as pleaded.
    Appeal from 'the Circuit. Court of Henry.
    Tried: before: the I-Iomi. John P. Htjbbabd.
    This was an action brought by the appellee, J. A. Curry, against the appellant, W. O. O’Neal. The facts of the case are sufficiently stated in, the opinion.
    The court, at the request of the plaintiff, gave to the jury the following written charge: “The court charges the jury that the burden of proof is upon the defendant to establish his set off.”
    The defendant duly excepted to the giving of this charge, and also excepted to the court’s refusal to give the following charge requested by him: “The court
    charges the jury that they may look to» the fact, if it be a fact, that plaintiff is contradicted in his testimony by W. C. O’Neal, J. T. Thrasher, J. A. Davis, Harmon Andrews, Jep Davis, Cooley Sissendanner and T. C. Andrews, together with all the other evidence in this case in determining the weight they will give his testimony in their consideration] of the same.” '
    ■There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to» which exceptions were reserved.
    Espy, Farmer & Espy, for appellant,
    cited McArthur V. Ins. Go., 116 Ala. 659; Home Protection, - etc., v. Whiddon, 108 Ala. 203; Lewis v. Hudmon, 56 Ala. 186; Jones v. State, 76 Ala. 8; Allen v. State, 79 Ala. 34:
    B. F. Reid, contra,
    
    cited Carpenter v. State, 98 Ala. 31; Gook v. Malone, 29 So». Rep». 653.
   HARALSON, J.

This suit was commenced in a justice’s couirtl o»n the -7th October, 1899, by the plaintiff, J. A. Curry, on a co»mplain-t in two» co»unts; the first one claiming of defendant, W. C. O’Neal, $75 due from him to» plaintiff, for the value of two» bales of lint cotton sold by.plaintiff to» defendant, oini the 7th October,. 1899 ,(1898), which sum of money was alleged to» be due and unpaid; the second count claiming .the same sum alleged to be due, by account made with plaintiff by defendant, for merchandise, goods and chattels sold by plaintiff to defendant, on the 7th - October, 1899 (1898), which sulm was alleged to be due aind unpaid.

The justice toying the case found and rendered a judgment in favor of the defendant, and the plaintiff appealed to the circuit court. There, the defendant interposed pleas numbered 3, 4 and 5; the third averring “That at the . time the suit was brought, the plaintiff owed the defendant the sum of $51.30 for certain guano sold by Dothan Guano Company, to-plaintiff, the-day of January, 1898, Avhich account belonged to defendant at the time the suit Avas brought.” 4. “That at the,time the suit aauis brought, the plaintiff owed the defendant the sum of $51.30 for certain guano sold by Dothan Guano Company to plaintiff, on or about the month of January, 1898, which account belonged to and wa; the property of the defendant, at the time •this suit was brought, and that on October 7, 1898, the defendant tendered and offered to pay plaintiff the sum of $21.19, in currency, atad plaintiff refused to take same, and upon bringing this suit, the defendant brought said sum of $21.19 into- this court, and the same is now in this court.” 5. “That oin the 7th October, 1899, the defendant offered and tendered plaintiff the sum of $21.19 ilni currency, and plaintiff •refused to accept this sum, but refused the same, and •upon the bringing of this suit against him, brought •said $21.19 into the court, and the same; is now in this court.” .

The plaintiff demurred to the pleas of set-off on several grounds, but no action appears to have been, takep by the court on the demurrers.

The plaintiff filed, as- stated, three replications “to the plea of set-off:” 1st, denying each and every allegation of the plea; 2d, that the account mentioned in the plea consisted of a promise on the part of the plaintiff, to answer for .the debt of one Harmon Andrews, .and tire plaintiff averred that there was - no consideration for said promise expressed in..Avriting and signed by the plaintiff, or by any person lawfully authorized to sign the plaintiff’s name thereto-, and, 3d, that the said account offered as a set-off-is an account alleged to lutve been contracted by plaintiff and. said Harmon Andrews with the Dothan Guano Co.-.

Upon these .replications, the defendant, .as appears, took issue, and upon issue on them, the case Avas tried, and judgment rendered for the plaintiff for $81.96, from which judgment the defendant appeals, assigning errors for rulings during the trial.

Tlie plaintiff's testimony tended to prove his complaint. He stated that, defendant gave as a reason for not paying him the two* bales of cotton sold to him for $75, that.plaintiff owed him an account for guano purchased by plaintiff’s tenant, Andrews. He admitted that in the Spring' of 1898, he made arrangements with O’Neal to* let other tenants on his place besides Andrew's have gnano, but denied that he instructed Andrew's toi go to O’Neal or the Dothan Guano Co*, to get' any guano. He admitted that he made arrangements w-ith O’Neal for said Andrew's for money to make his crop* with, in the year 1898, amounting to $50, and that Andrews brought a note to him from O’Neal already filled ontl for that sum, which he signed with Andrews, Avho* returned it to O’Neal and received from him the money, Avhich note, a.s the evidence sIioavs, without conflict, the plaintiff afterwards paid to O’Neal. He also stated that O’Neal did not decline to let Andrews have the money unless plaintiff Avould also let him buy gua.no from him. The defendant asked the plaintiff o-n cross-examination, if he made any arrangements for Andrews to* get guano elsewhere, that year, which question upon llhe objection of plaintiff, and over1 exception of the defendant, the court declined1 to allow the witness to answer. In this there Aras no error, since the answer, if in the negative, Avas wholly irrelevant to the issues. If plaintiff had failed tlo make such an arrangement, it did not tend to* prove that he made it Avith defendant or Avith the Dothan Guano Co*.

Tlie Avitness, Andrews, for defendant, testified that plaintiff borroAA’ed $50 for him from defendant in the Spring of 1898, Avhich he got after executing his note therefor AA'ith the plaintiff as his surety, and that defendant Avould not let him have the money until plaintiff signed the note with him, and that he went for the guano and tlie money at the same time. Plaintiff asked the witness on the'cross, if he got tlie money, on the first trip* he made to Dothan fo*r it. To this question lie replied that he did not get tlie money on that, trip; that O’Neal refused to let him have it, and dreAV up a note for plaintiff to sign Avith him for the money; that he carried out a load of gua.uo- and the: note for plaintiff .to sign, which lie did, and the next day he returned and got the money. To the above question when propounded, the defendant objected, for that it- called for illegal, irrelevant and incompetent, evidence, which objection, against defendant’s exception, the court overruled. We are unable .to say that the evidence did not tend to support the plaintiff’s replications. Why should defendant have to- let the Avitness- have idle guano on plaintiff’s account, Avithout' a Avritten order, and! yet have required the Avitness to give plaintiff as his security on a note for the money lie let him have? According to- defendant’s contention he Avas to let Andrews have both the money and guano on plaintiff’s credit, Avhich plaintiff denied as to the guano. If he Avas dealing Avith him on plaintiff’s account and credit, as to both, a Avritten order Avas as necessary in the oine case as in the other, and the fact that he let the witness, have the guano- without a Avritten order, and1 required it as to the money, tends, at least, to sho-AV that defendant sold the guano to- the Avitness on his own credit. This lulling avus the ground of idle 4th assignment of error.

The. plaintiff offered to- pro-ve by this Avitness that he gave his individual note to defendant for the guan-o lie got fro-m O’Neal in 1898. The defendant objected, because the; evidence proposed was illegal, and because the. note itself was the best evidence and should be produced. The objection for illegality Avas untenable, as, if Andrews alone gave; a note for the guano, it tended to sho-w it was sold to- him on his individual credit, and as for the other' objection, if the production of the no-te Avas necessary, before secondary evidence of its contents could be introduced, the plaintiff showed a sufficient predicate for its- introduction. The Avitness Ava.s alloAved to’answer, that he gave to- O’Neal, or Dothan Co-., a note fo-r the guano he got from them in the year 3898.

Dlaintiff asked the witness J. A. Davis, who- testified that he was present AA-lien Andrews came for the money, Avhat took place between O’Neal amid Andrews Avhen the latter came for the; money. The witness was allo-Aved to answer, over the objection and exception by defendant for illegality, that Andrews did not get the money* but that O’Neal gave a note to him to carry and have plaintiff sign it with him, and when he brought the note back, O’Neal paid him the mamey. This evidence was admissible, for the same reason that the evidence constituting assignment of error 4, above considered, was admissible. It tended to show that defendant was trading on plaintiff’s credit as to the money loaned ■Andrews, and on Andrews’ credit as to the guano,. ,

■The witness for the plaintiff, in rebuttal, one Graves,, testified to facts favorable to the plaintiff. On the cross he was asked what his feelings were towards defendant, and he answered that they were good. He was then asked by defendant, if in the Fall of 1898, the defendant had not foreclosed a mortgage he had given him and sold the property; also, if in the Fall of 1898, defendant had not sworn out a warrant against him for removing mortgaged property; and if in fact he did not flee the country to avoid arrest under said warrant. The defendant’s counsel stated to, the court that these questions were asked for the purpose of eliciting testimony that the feelings'of the witness towards the defendant were bad. The court declined, on objection by plaintiff, to allow the questions, to1 be asked. In this there was no, error. The matters referred .to in the questions might have implied at the time a bad feeling on the part of the defendant towards the witness; but these facts, of themselves, did not imply a bad or revengeful- feeling on the part of the witness towards defendant.

There was no, error in charge 1 requested and given at the request of the plaintiff. — Cook v. Malone, 128 Ala. 662.

The charge requested by defendant is argumentative, and singles, out a fact on which special stress is laid.

Finding no error in the record, the judgment below must be affirmed.  