Opinion
4 Div. 286.
November 11, 1926.
Appeal from Circuit Court, Covington County; W. L. Parks, Judge.
A. Whaley, of Andalusia, for appellants.
Defendants should have been permitted to show the amount due by plaintiff to Graves at the time suit was filed. No notice of set-off was required. Code 1923, §§ 10172, 10176, 10180, 10181; Stull v. Daniel M. S. Co., 207 Ala. 544, 93 So. 583. Evidence of admissions made by Graves, not in the presence of the other defendants, was not admissible. W. T. Rawleigh Medical Co. v. Hooks, 16 Ala. App. 394, 78 So. 310; Armstrong v. Holley, 29 Ala. 305; Dennis v. Chapman, 19 Ala. 29, 54 Am. Dec. 186; Evans v. State Bank, 13 Ala. 787.
W. W. Sanders, of Elba, for appellee.
The fact that the pleadings were in short by consent would not authorize proof of a set-off or recoupment. Code 1923, § 10181. Graves' declarations, though made in the absence of his sureties, were admissible as evidence; no bad faith being shown or charged. Camp v. Dill, 27 Ala. 553; Evans v. Keeland, 9 Ala. 42; 22 C. J. 405.
The pleadings were in short by consent, with the usual leave to give in evidence matter required to be specially pleaded.
The defendants had the right to show the amount due by plaintiff to them at the time suit was brought. Code, §§ 10172, 10180.
"A comaker or surety sued jointly or alone may, with the consent of his comaker or principal, avail himself, by way of set-off, of a debt or liquidated demand due from the plaintiff at the commencement of the suit to such comaker or principal." Section 10176, Code of 1923.
The plaintiff's evidence tended to refute such issue of indebtedness to defendant. A plaintiff may waive the fact that he was not served with a copy of the plea of set-off or counterclaim. Stull v. Daniel Machine Co., 207 Ala. 544, 93 So. 583; Dickson v. Alabama Machinery Supply Co., 18 Ala. App. 164, 89 So. 843; Ashby Brick Co. v. Ely Walker Dry Goods Co., 151 Ala. 272, 44 So. 96.
Admissions of indebtedness were res inter alias acta, if made by the principal after he was declared by the company in default as to contract provisions and the agency practically terminated by the principal. Such admissions against interest were incompetent and did not bind the surety as guarantor. W. T. Rawleigh Medical Co. v. Hooks, 16 Ala. App. 394, 78 So. 310; Rapier v. Louisiana Equitable Life Insurance Co., 57 Ala. 100; Myatts Moore v. Bell, 41 Ala. 222; Dennis Strickland v. Chapman, 19 Ala. 29, 54 Am. Dec. 186; Armstrong v. Holley, 29 Ala. 305; Fireman's Insurance Co. v. McMillan, 29 Ala. 147; Moore v. Leseur, 18 Ala. 606; Evans v. State Bank, 13 Ala. 787; Lowther v. Chappell, 8 Ala. 353, 42 Am. Dec. 364.
This is to say the admissions of Graves should have been limited as to him, as it was not binding on the sureties. The question of whether or not there was termination of the agency and the taking up or revoking of Graves' commission or authority as agent was material to the defense of the sureties.
Reversed and remanded.
SOMERVILLE, MILLER, and BOULDIN, JJ., concur.