EX PARTE THOMAS

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Docket Number

8 Div. 941.

Attorney(S)

H. G. Bailey, of Boaz, for petitioner. Under his plea of payment, defendant had the burden of proving a discharge of the debt according to its terms or by something given and received of agreed value equal to the debt or liability. Defendant's evidence showed an implied agreement on the part of plaintiff to accept the mortgage on the machinery in lieu of a cash payment of the note, and showed further that plaintiff received the machinery from the possession of Watford and Moorer to take the place of the note sued on; that plaintiff took the machinery into his possession, stored it and sold a part of it, without the consent or agreement of defendant. The value of the machinery at the time it came into plaintiff's possession was pertinent on the issue wheth- money payments made by defendant together with the value of the property obtained by plaintiff was sufficient to extinguish defendant's obligation. 30 Cyc. 1181, 1193; Morgan Hill Pav. Co. v. Carroll, 211 Ala. 121, 99 So. 640; Smith v. Pitts, 167 Ala. 461, 52 So. 402; Waldrop v. Automobile Sales Co., 17 Ala. App. 4, 81 So. 180; Cocke v. Chancy, 14 Ala. 65. Such evidence was admissible to explain the transaction between the parties. The contention of defendant being that plaintiff impliedly accepted the mortgage on the machinery as full satisfaction of the debt, the worth of the machinery was competent upon the question of the probability or improbability of plaintiff's having accepted said mortgage as such payment of defendant's debt. Street Orr, of Guntersville, for respondent. If the payee agrees to accept certain goods in full payment of a debt, the value of the goods is immaterial. 48 C.J. 628; Clark v. Minor, 73 Ga. 590; Buck v. Burk, 18 N.Y. 337; Mahnken v. Pelletreau, 93 App. Div. 420, 87 N.Y.S. 737; Fosdick v. Greene, 27 Ohio St. 484, 22 Am.Rep. 328.

Judges

BROWN, Justice.

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Ex parte THOMAS. LACKEY v. THOMAS.

BROWN, Justice.

The opinion of the Court of Appeals states that:

"The value of the machinery at the time it was in the possession of Watford and Moorer was immaterial, and therefore the trial court committed error."

This statement relates to testimony going to show the value at the time the machinery was repossessed by the plaintiff Lackey under the mortgage note given by Watford and Moorer payable to the plaintiff, evidencing their indebtedness to him.

In view of the conflict in the evidence, as to whether the mortgage note was taken and accepted by Lackey in payment and discharge of defendant's note, now in suit, testimony as to the value of the property at the time of the execution of the note might shed light on the conflicting issue of fact, but testimony at the later date, after default by Watford and Moorer, shed no light on the question at issue. George D. Witt Shoe Co. v. Mills, 224 Ala. 500, 140 So. 578; Smith v. State, 13 Ala. App. 411, 69 So. 406.

The writ of certiorari was properly denied.

Rehearing overruled.

ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.

Ex parte THOMAS. LACKEY v. THOMAS.

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