Farmers' & Merchants' Bank v. Hollind

ANDERSON, O. J.

The only error insisted upon in the argument of appellant’s counsel • was the giving of charge A' at thp request of the plaintiff. Appellant does not controvert the existence of all elements that would entitle plaintiff to recover, if such a request was made upon the defendant to satisfy the mortgage as is required by the statute. Section 4S98 of the Code of 1907. Nor is the sufficiency'of the request questioned, if properly made and served upon the defendant. The contention being that the mere delivery to the defendant’s cashier, Searcy, of the envelope containing the written request, was not sufficient, unless the proof shows that he was at the time notified of the contents, or unless he subsequently read the request, and that, as it was open for the jury to find that Searcy did not know of the request, said charge A invaded the province of the .jury.

[1]

We think that if the request had been mailed, and the defendant received same in due course, this would be a compliance with the statute by tbe plaintiff as to making the request, and that, if it was delivered by hand to the defendant’s authorized agent the statute was met, whether the agent subsequently opened the envelope and read it or not, and that it was not incumbent upon the plaintiff’s wife, when delivering the envelope to Searcy, to inform him that it contained a written request for the satisfaction of the mortgage. If the plaintiff’s wife delivered the notice or request to Searcy, as hypothesized in said charge A, this fully met the requirement of the statute as to the written request, and the giving of said charge was not error. The case of Dothan Co. v. Ward, 132 Ala. 380 , 31 South. 748 , involves a different state of facts, which justified the defendant’s charges in said ease, and which do not tend to render charge A bad in the present case.

[2]

It is also suggested that the charge is faulty, in that it says “that if you believe from the evidence,” instead of “if you are reasonably satisfied from the evidence.” It is sufficient to say that, if there is a difference in these terms, the ones used required a greater degree of belief or conviction upon the part of the jury than the words “reasonably satisfied” .would have done, and, this being true, the defendant cannot complain that the plaintiff exacted too high a degree of conviction or satisfaction upon the part of the jury g.s to the existence of a fact favorable to him than the law required.

The judgment of the .circuit court is affirmed.

Affirmed.

McOLELLAN, SAYRE, and GARDNER, JJ., concur.