Opinion
7 Div. 510.
October 16, 1924.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
M. M. Smith, of Pell City, for appellant.
The notice or demand to mark the mortgage satisfied was insufficient. Jarratt v. McCabe, 75 Ala. 325; Jowers v. Brown Bros., 137 Ala. 581, 34 So. 827.
Charles R. Robinson, of Ashville, for appellees.
Brief of counsel did not reach the Reporter.
There was no error in permitting J. E. Hannah to testify as to conversations between himself and wife as to getting an attorney and making the request to satisfy the mortgage record, and the jury could infer that the wife either authorized her signature to the request or ratified the same before it was delivered to the defendant. She read the paper after her name had been signed thereto, and told J. E. Hannah to "present that to the bank, and maybe they will take the note off."
The trial court did not err in refusing the general charge for the defendant upon the theory that the evidence failed to show the satisfaction of the mortgage indebtedness. Indeed, counsel concede that the claimed credits satisfied the indebtedness, if the cross-ties item should be included, and as long as the plaintiffs' evidence was in as to this item, whether true or not, it was a question for the jury as to whether or not the mortgage had been satisfied before the request was made.
It is next urged that the trial court should have granted the motion for a new trial on account of surprise, in that the plaintiff, J. E. Hannah, testified on this trial as to a credit for the cross-ties which he did not claim upon the former trial and which was fabricated in order to swell the credits to a sufficient amount to satisfy the mortgage, and which the defendant could have contradicted by several witnesses had this new evidence been anticipated. This would have no doubt presented a good ground to the defendant to withdraw the announcement of ready for trial when this new evidence was developed and to request a continuance in order to get witnesses to contradict this said evidence, but, not having done this and gone on with the trial, there was such a speculation as to the result as to forbid reversible error on the part of the trial court in refusing a new trial on this ground. McClendon v. McKissack, 143 Ala. 188, 38 So. 1020; Simpson v. Golden, 114 Ala. 336, 21 So. 990.
The judgment of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.