text:
    COMMERCE UNION BANK v. JOHN DEERE INDUSTRIAL EQUIPMENT COMPANY.
    78-830.
    Supreme Court of Alabama.
    Aug. 22, 1980.

      James T. Baxter, III of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    John P. Proctor of Thomas & Proctor, Scottsboro, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment in the Circuit Court of Madison County for plaintiff John Deere Industrial Equipment Company as to fewer than all parties and as subsequently made final pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure. We affirm.

On December 6, 1976, Commerce Union Bank entered into a security agreement with Alabama Forest Resources, Inc., covering all of Alabama Forest Resources’ existing and after acquired equipment and machinery. A financing statement was filed with the Secretary of State on December 15.

Alabama Forest Resources, Inc., subsequently began doing business under the name of American Forest Resources, Inc., and under the latter name obtained possession of a JD550 crawler with limb risers and a JD 3325 power winch on August 10, 1978, from John Deere Industrial Equipment Company, pursuant to a rental agreement. The agreement contained an option to purchase and provided for ninety-one percent (91%) of the rentals paid to be applied to the purchase price. American Forest Resources exercised its option to purchase on September 11, and John Deere filed a financing statement with the Secretary of State on September 21.

On August 25, American Forest Resources purchased a 401-C loader backhoe with a 9250 hoe from John Deere. John Deere filed a financing statement on this equipment with the Secretary of State on September 5. September 4 was a legal holiday.

On May 9, 1979, John Deere filed a three-count detinue suit for personal property against Commerce Union and American Forest Resources. Commerce Union answered and counterclaimed for detinue and conversion. After a hearing, the trial court entered judgment on June 20, against the bank for the equipment and dismissed the bank’s counterclaim. On July 12, Commerce Union filed a motion for new trial, or in the alternative, for amendment of judgment. An order of final judgment was entered on August 3, pursuant to rule 54(b), ARCP. Commerce Union appeals.

The first issue to be determined is whether John Deere’s perfected purchase money security interest in the 401-C loader equipment should take priority over the bank’s prior perfected security interest in the same collateral, when John Deere’s security interest was obtained on August 25, 1978, and the financing statement was filed on September 5.

The Uniform Commercial Code, provides for the determination of priorities among competing and conflicting security interests. Section 7-9-312(4), Code 1975, provides as follows:

A purchase money security interest in collateral other than inventory has priority over a conflicting security interest in the same collateral if the purchase money security interest is perfected at the time the debtor receives possession of the collateral or within 10 days thereafter.

Although this provision has been amended as of June 26, 1979, to allow twenty days for perfection, the transactions in question occurred prior to the amendment; therefore, the original provision governs.

Section 1-1-4, Code 1975, provides for the computation of time as follows:

Time within which any act is provided by law to be done must be computed by excluding the first day and including the last. However, if the last day is Sunday, or a legal holiday as defined in section 1-3-8, or a day on which the office in which the act must be done shall close as permitted by any law of this state, the ■ last day also must be excluded, and the next succeeding secular or working day shall be counted as the last day within which the act may be done.

This statute has been interpreted to apply “to acts required to be done within a certain time, and not to time which must intervene before a certain status is terminated or one is brought into existence.” Jones v. Duncan, 250 Ala. 587, 35 So.2d 345 (1948).

According to the statutorily prescribed method of computation, September 5 (date of filing) was, in fact, the eleventh day following August 25 (date of purchase), and, ordinarily, would have been beyond the period for perfecting under the special priority provisions. September 4 (the tenth day), however, fell on Labor Day, a legal holiday under § 1-3-8, Code 1975, which would have been excluded under the statute, thereby making September 5 the last day on which to perfect.

Commerce Union contends that § 1-1-4 is not applicable to the ten-day period in question because it is merely an intervening period, at the end of which a subsequent purchase money security interest in non-inventory collateral, will lose its preferred status over a prior perfected security interest in the same collateral, unless the purchase money security interest is perfected (by filing, here) within the ten-day period. We disagree. John Deere’s filing of a financing statement on September 5 was an “[act] required to be done within a certain time . . . .” Jones v. Duncan, 250 Ala. 587, 589, 35 So.2d 345, 347 (1948). John Deere was required to file within a ten-day period to perfect its security interest and maintain its priority; therefore, § 1-1-4 is applicable. According to § 1-1-4, John Deere perfected within the ten-day period and is entitled to the special priority afforded a purchase money security interest in § 7-9-312(4).

The second issue which must be decided is whether John Deere’s purchase money security interest in the JD550 crawler and the JD 3325 power winch should prevail over the bank’s prior perfected security interest in the same collateral. Although American Forest Resources first obtained possession of the aforementioned equipment from John Deere on August 10, 1978, under a rental agreement, one month later on September 11, 1978, a purchase agreement for the same equipment was entered between the parties. It was not until September 21, ten days after the purchase agreement was executed, that John Deere filed a financing statement to perfect its security interest. Before this issue can be resolved, there must be an initial determination of whether the lease of August 10 was, in fact, a true lease or whether it was instead a security interest.

Section 7-1-201(37), Code 1975, defines a security interest as follows:

“Security interest” means an interest in personal property or fixtures which secures payment or performance of an obligation. . . . Unless a lease or consignment is intended as security, reservation of title thereunder is not a “security interest” . . . . Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.

Section 7-9-102, Code 1975, the scope provision for Article 9, states:

(1) . . '. [Tjhis article applies so far as concerns any personal property and fixtures within the jurisdiction of this state:
(a)To any transaction (regardless of its form) which is intended to create a security interest .
(2) This article applies to security interests created by contract including . title retention contract and lease . . . intended as security.

The official comment to this section further provides:

[T]he principal test whether a transaction comes under this Article is: is the transaction intended to have effect as security? . . . When it is found that a security interest as defined in Section 7-1-201(37) was intended, this Article applies regardless of the form of the transaction or the name by which the parties may have christened it.

Although intent is the principal test under the Code, other factors for consideration have been used by the courts. In re Alpha Creamery Co., Inc., 4 U.C.C.Rep.Serv. 794, 797-98 (W.D.Mich.1967), listed the following indicia for distinguishing a true lease from a security interest.

1.The facts in each case control to show intention of the parties to create a security interest.
2. Reservation of title in a lease or option to purchase appurtenant to or included in the lease does not in and of itself make the lease a security agreement.
3. Lease agreement which permits the lessee to become the owner at the end of the term of the lease for a nominal or for no additional consideration is deemed intended as a security agreement as a matter of law.
4. The percentage that option purchase price bears to the list price, especially if it is less than 25%, is to be considered as showing the intent of the parties to make a lease as security.
5. Where the terms of the lease and option to purchase are such that the only sensible course for the lessee at the end of the lease term is to exercise the option and become the owner of the goods, the lease was intended to create a security interest.
6. The character of a transaction as a true lease is indicated by:
(a) Provision specifying purchase option price which is approximately the market value at the time of the exercise of the option.
(b) Rental charges indicating an intention to compensate lessor for loss of value over the term of the lease due to aging, wear and obsolescence.
(c) Rentals which are not excessive and option purchase price which is not too low.
(d) Facts showing that the lessee is acquiring no equity in leased article during the term of lease.

The Court in RCA Corporation v. State Tax Commission of Missouri, 513 S.W.2d 313 (Mo.1974), stated that “[w]e must gather the intention of the parties from the entire instrument without regard to its form, or technical terms used therein ... in the light of the nature of the transactions, the situation and relationship of the parties, and the purposes sought to be achieved by them.” The ultimate determination, therefore, must be a factual one. E. g., Matter of Tillery, 571 F.2d 1361 (5th Cir. 1978).

Upon a cursory examination of the rental agreement in question, many of its conditions and terms seem to indicate a security interest. The standard printed lease form provides that lessee shall be liable for the full rent of the guaranteed minimum rental period, that lessee may purchase at his option at any time during the term and apply ninety-one percent (91%) of all rentals paid to the purchase price which is the present value as indicated on the lease, that lessee shall indemnify lessor for loss or damage (except to the extent covered by insurance purchased by the lessor), that the amount of total loss shall be calculated according to the present value, less any rental payments made, and that damage other than total loss shall not terminate the rental payments for the remainder of the term. The lease, however, does not designate any guaranteed minimum rental term. Although the instrument provides a space for the designation of a guaranteed term and the lease provisions and conditions refer to a guaranteed term, there is no evidence of any guaranteed minimum rental period under this lease.

Most of the cases declaring rental agreements to be security interests have involved leases which obligated lessees for a guaranteed minimum term: Matter of Tillery, 571 F.2d 1361 (5th Cir. 1978); James Talcott, Inc. v. Associates Capital Co., Inc., 491 F.2d 879 (6th Cir. 1974). American Forest Resources was not obligated to pay any particular sum of money for any specified term other than monthly rental payments of $2,575.00. According to competent testimony at trial, the rental value of this equipment would be between $2,200.00 and $2,500.00 per month. Under this arrangement, therefore, American Forest Resources could terminate the lease and return the equipment at any time without further liability.

Although ninety-one percent (91%) of the rentals paid could be applied to the purchase price in the event American Forest Resources exercised its option to purchase, there is no conclusive evidence that this provision would allow the lessee to “become or [have] the option to become the owner of the property for no additional consideration or for a nominal consideration.” Code 1975, § 7-1-201(37). Likewise, there is no evidence to support a contention that the only sensible course for American Forest Resources under the terms of the lease would be to exercise the purchase option. In fact, American Forest Resources exercised its option pursuant to the ninety-one percent (91%) accrual allowance only one month after the lease was executed, which left almost the entire purchase price to be paid. There is also evidence that the actual purchase price was more than the option price in the lease. The present value (option price) of the equipment was $35,808.00 in the lease as compared to the actual purchase price of $41,700.00 in the purchase agreement. The seeming renegotiation of the purchase price further indicates the intent of the parties to enter into two separate transactions-first a lease, then a purchase agreement.

Although American Forest Resources obtained actual possession of the equipment on August 10, pursuant to the rental agreement, it did not become a “debtor,” nor did it “[receive] possession of the collateral” for purposes of § 7-9-312(4) until September 11, the date of the purchase agreement. Brodie Hotel Supply, Inc. v. United States, 431 F.2d 1316 (9th Cir. 1970). Brodie states that “the term ‘debtor’ as it is used in this particular priority statute . . . [§ 7-9-312(4)] means ‘the person who owes payment or other performance of the obligation secured.’ ” [§ 7-9-105(d)], Id. at 1319. American Forest Resources was only required to pay rent on a monthly basis for the use of the equipment; therefore, it “did not owe performance of an ‘obligation secured’ by the collateral in question” until the purchase agreement was executed on September 11, 1978. Id.

After a careful review of the lease, and for the above stated reasons, we find that the intent of the parties was to create a true lease. John Deere’s purchase money security interest was created by the execution of the purchase agreement on September 11, and the financing statement filed September 21 perfected and secured John Deere’s preferred status over Commerce Union’s prior perfected security interest.

Other issues raised by the parties need not be addressed for purposes of this appeal. We find the judgment of the trial court is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and ALMON, EMBRY and BEATTY, JJ., concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Douglas BAGGETT v. J. O. SIMS
    79-440.
    Supreme Court of Alabama.
    Aug. 22, 1980.
    Clement J. Cartron of Cartron & Pearson, Huntsville, for appellant.
    Charles L. Murphree of Caddell, Shanks, Harris, Moores & Murphree, Decatur, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment of the Circuit Court of Morgan County, denying Baggett’s demand for a jury trial. We reverse and remand for a jury trial on the merits.

Sims filed a two-count complaint, on July 14, 1977, alleging $23,500.00 due by open account and $23,500.00 plus eight percent (8%) interest per annum for machinery and equipment allegedly sold and delivered on an oral contract. On August 12,1977, Bag-gett served a motion to dismiss for failure to state facts upon which relief could be granted. This motion was overruled on September 13, granting Baggett twenty days in which to answer. On September 30, Baggett served a two-count compulsory counterclaim and an answer denying both counts of the complaint. A reply to the counterclaim was served October 17, denying both allegations. On November 15, within 30 days after the service of the reply to the counterclaim but more than 30 days after the service of the answer to the complaint, Baggett filed a “Motion Demanding Jury Trial.” This motion was overruled on January 26, 1978.

After an ore tenus hearing, judgment was entered against Baggett for $27,260.00, and in favor of Sims on the counterclaim.

The primary issue for review is whether the trial judge erred in not granting Baggett a trial by jury, when the demand for one was filed within thirty days after the service of the reply to a compulsory counterclaim but more than thirty days after the service of the answer to the complaint. We hold that the jury trial was timely demanded and should have been granted with respect to all issues addressed in the complaint and compulsory counterclaim.

The first factual consideration is whether Baggett filed a timely demand for a jury trial, thereby falling within the prescription of Rule 38(b), ARCP; or, whether he filed a motion for a jury trial inducing the trial judge’s discretion within Rule 39(b), ARCP. Rules 38(b) and 39(b) of the Alabama Rules of Civil Procedure state:

Rule 38(b): Demand. Any party may demand a trial by jury of any issue tria-ble of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 30 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party, and such demand shall be deemed to be a demand for a struck jury.
Rule 39(b): By the Court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by jury of any or all issues.

It is clear from the language of the Rules, that Rule 39(b) is not invoked unless there has been a failure to comply with Rule 38. The court’s discretion will be activated only when a motion has been made for a jury trial, and a motion will be made only when (a) a jury trial has not been demanded and the time within which to do so has expired; or, (b) the demand for the jury trial, though made, was untimely. In all other cases pertinent to a demand for a jury trial, the trial judge’s discretion will not be invoked. Furthermore, the jury trial will be waived if not demanded according to Rule 38(b), and the case will be tried non-jury if the subsequent Rule 39(b) motion is overruled. Rules 38(b) and 39(b), ARCP.

We must ascertain whether Rule 38(b) has been complied with by determining whether the jury trial request was timely. Rule 38(b) provides that the demand must be made “not later than 30 days after the service of the last pleading to such issue.” Baggett contends that the last pleading to such issue in this case is the reply to the compulsory counterclaim and that he complied with the time frame in Rule 38(b). Accordingly, he maintains that he should be granted a jury trial.

Sims asserts that Baggett designated his jury trial request as a “motion” and that it should be treated as one, invoking the trial judge’s discretion in Rule 39(b). Sims further asserts that, even if the motion is treated procedurally as a demand, it only encompasses those issues raised in the counterclaim and not those raised in the complaint because more than thirty days had passed since the service of the answer. Additionally, it is argued that with respect to those issues raised in the complaint, Bag-gett had filed a motion that was properly overruled within the judge’s discretion. Indeed, it is claimed that for this court to overrule the judge’s discretion would be tantamount to holding that the judge has no discretion at all.

Although Sims has made a very persuasive attempt to convince us that this case is controlled by the trial court’s discretion in Rule 39(b), we find that substance over form controls this issue. Notwithstanding the fact that Baggett entitled his request “Motion Demanding Jury Trial,” it is in all practical respects a demand for a jury trial in accordance with Rule 38(b) and not a motion under Rule 39(b), because of its timeliness. This brings us to the sub-issue of whether the demand was timely for a jury trial on the entire case, or only on those issues raised in the compulsory counterclaim.

This issue is squarely addressed in Moore’s treatise on Federal Practice stating that although there are two different approaches to this question they both reach the same result; namely, that if the demand for a jury trial has timely been made after the reply to a compulsory counterclaim, the demand is good as to all issues addressed in the original complaint and in the compulsory counterclaim, except for those issues expressly excepted in the demand. 5 Moore’s Federal Practice ¶38.-39[2], at 314-318; (2nd ed. 1948). Rule 38(c), ARCP.

One line of reasoning states that if the demand is timely after the reply to a compulsory counterclaim, the trial court has the discretion to disregard the waiver of the jury trial on those issues raised in the answer and complaint if the demand was not made timely with respect to those pleadings. It is suggested that for ease and efficiency of judicial administration, the court should exercise its discretion in favor of permitting a jury trial on all issues, rather than limiting the jury trial to those issues raised in the compulsory counterclaim and requiring a non-jury trial on those issues raised in the answer and complaint. 5 Moore’s, supra. It is anomalous to restrict a jury trial to those issues raised in the compulsory counterclaim-a transaction or occurrence that arises out of the subject matter of the opposing party’s claim-and require a non-jury trial on the issues arising out of the original complaint.

The second, and we find preferable, line of reasoning holds that a timely demand after a reply to a compulsory counterclaim is timely as to all issues-including those raised in the complaint and answer- and the court’s discretionary authority to disregard the waiver of a jury trial is not at issue even if the demand is tardy with respect to the answer. Because the answer and compulsory counterclaim are not wholly separate and distinct from each other, and because they both directly deal with the transaction or occurrence made the basis of the complaint, the issues are not actually determined until the service of the reply. 5 Moore’s, supra. Therefore, applying this reasoning to the language in Rule 38(b), the “last pleading” for purposes of a timely jury demand is the reply to a compulsory counterclaim.

Contrary to the dicta in Ex Parte Marcrum, 372 So.2d 313 (Ala.1979), we find that there is a distinction on this issue depending upon whether the counterclaim is compulsory or permissive. When the counterclaim does not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim, a timely jury demand after the reply, but dilatory with respect to the answer, will not revive the right to a jury trial on the issues raised in the complaint as it will with a compulsory counterclaim. 5 Moore’s, supra at 318.

We hold that if a demand for a jury trial is made within BO days after the service of the reply to a compulsory counterclaim the demand is effective to compel a jury trial on all issues raised in the complaint, answer, compulsory counterclaim, and reply thereto. No judicial discretion is invoked; accordingly, the jury trial shall proceed unless otherwise abrogated by the parties or unless the issues raised are those as to which no jury trial would have been granted at law. On the basis of Rule 38(b), ARCP, we reverse and remand this case for a jury trial on the merits. All other issues raised by the parties in their briefs are pretermitted for review.

REVERSED AND REMANDED.

TORBERT, C. J., and ALMON, SHORES and EMBRY, JJ., concur.


author: BEATTY, Justice.

text:
    Elizabeth LEWIS, a/k/a Elizabeth C. Lewis, as Clerk of the Circuit Court of Choctaw County, etc. v. STATE of Alabama ex rel. James D. EVANS, as District Attorney of the First Judicial Circuit of Alabama, et al.
    78-789.
    Supreme Court of Alabama.
    Aug. 29, 1980.

      William L. Utsey, Butler, for appellant.
    Charles A. Graddick, Atty. Gen., and Donald G. Valeska, Asst. Atty. Gen., and James Evans, Choctaw County Dist. Atty., for appellees.
   BEATTY, Justice.

The appellant was convicted by a jury upon an Information for Impeachment, and based upon that verdict the trial court decreed that the appellant was impeached and removed from office. This appeal is from that judgment. We affirm.

The appellant became Circuit Clerk of Choctaw County on March 1, 1977. She also served as ex-officio clerk of the District, Juvenile and Small Claims Courts of Choctaw County. Prior to that time she had served as chief deputy clerk, beginning on September 27,1973, and she assumed the duties as Clerk upon the resignation of her predecessor.

During the month of June, 1978 the appellant notified the Sheriff of Choctaw County of a shortage of funds in her office and that some investigation was needed. The appellant also informed the district attorney of the matter, describing the shortage as an amount in excess of Fourteen Thousand Dollars. That approximate amount coincided with that reported to the district attorney by a State auditor. It was during the investigations of this shortage that the facts came to light which ultimately resulted in the charges which led to the appellant’s conviction.

Those charges were contained in an Amended Information of Impeachment and Prayer for Ouster, themselves based upon impeachment recommendations of the Choctaw County Grand Jury, Spring Term 1979. Charge One was Willful Neglect of Duty. Specifications 10 and 12 were considered by the jury:

10. For that during her present term of office, said Clerk, while serving in her official capacity as said Clerk, did commit an act or acts constituting or amounting to willful neglect of her official duty in that she did fail to meet and perform her duty to, periodically, but in no event less than once a month, not later than the tenth day of each month, remit all fines, forfeitures and costs of court, to the official or officials designated to receive such at the various governmental levels, to-wit, municipal, county and State as provided by law or rule, against the peace and dignity of the State of Alabama.
12. For that during her present term of office, said Clerk, while serving in her official capacity as said Clerk, did commit an act or acts constituting or amounting to willful neglect of her plain and manifest duty in that (1) she allowed large sums of cash money to accumulate in her office, and (2) she did not maintain at all times a depository in her office under lock and key for such large sums of accumulated funds, and (3) she instituted a practice whereby she was allowed to withdraw from such large sums of accumulated funds for her own private use, and as a result of such lax and unsound basic business practices public funds belonging to Choctaw County, Alabama, or to the State of Alabama, were misappropriated or misused, all of this being against the peace and dignity of the State of Alabama.

Charge Two was Corruption in Office. Specifications 1, 6, 7, 8, 9, 10 and 11 were considered by the jury in connection with Charge Two:

1. For that said Clerk did misuse and misappropriate public funds and monies which had come into her office through the official receipts of revenue, which is public revenue, from which payments to litigants, the County of Choctaw, the State of Alabama, the Judges’ and District Attorney’s Fund of Choctaw County, Alabama, and other official entities, persons and funds are to be made, by appropriating and converting to her own use large sums of said money and funds, extending over a period of months, from about, to-wit, March of 1977, through and including, to-wit, the latter months of 1977, better and more accurate times for which are unknown to the Grand Jury.

6. For that said Clerk, being charged or in any manner intrusted with the collection, receipt, safekeeping, transfer or disbursement of money and funds belonging to or under the control of the State of Alabama or of any State officer, to-wit, the Circuit Clerk of Choctaw County, Alabama, being also the Ex-Officio Clerk of the District Court of Choctaw County, Alabama, being the Ex-Officio Clerk of the Juvenile Court of Choctaw County, Alabama, and being the Ex-Officio Clerk of the Small Claims Court of Choctaw County, Alabama, hereinafter referred to as said Clerk, or belonging to or under the control of any county, to-wit, Choctaw County, Alabama, or any officer thereof, to-wit, said Clerk, did convert to her own use or to the use of another, in a manner contrary to law, or did use by way of loans, without interest, or did deposit with any person or corporation contrary .to law, or did exchange for other funds, to-wit, her own personal bank checks, in a manner other than as allowed by law, money, lawful currency of the United States of America, of the value of, to-wit, Seven Thousand One Hundred Seventy-Two and 25/100 ($7,172.25) Dollars, the exact denominations of which and a better description of which are unknown to the Relator, being portions of such money and funds, the collection, receipt, safekeeping, transfer, or disbursement of which the said Clerk had been charged or intrusted with, to about the amount of, to-wit, Seven Thousand One Hundred Seventy-Two and 25/100 ($7,172.25) Dollars, against the peace and dignity of the State of Alabama.

7. For that said Clerk, being a clerk of a circuit court, to-wit, the Clerk of the Circuit Court of Choctaw County, Alabama, and being the Ex-Officio Clerk of the District Court of Choctaw County, Alabama, being the Ex-Officio Clerk of the Juvenile Court of Choctaw County, Alabama, and being the Ex-Officio Clerk of the Small Claims Court of Choctaw County, Alabama, a public officer, did knowingly convert to her own use, portions of the revenue of the State of Alabama, or of a county thereof, to-wit, Choctaw County, Alabama, or did knowingly convert to her own use, money, lawful currency of the United States of America, of the value of, to-wit, Seven Thousand One Hundred Seventy-Two and 25/100 ($7,172.25) Dollars, the exact denominations of which and a better description of which are unknown to the Relator, which said money was paid into her office or received by her in her official capacity, all to about the amount of, to-wit, Seven Thousand One Hundred Seventy-Two and 25/100 ($7,172.25) Dollars, against the peace and dignity of the State of Alabama.

8. For that said Clerk, being a public officer receiving money on behalf of, for, or on account of the people of the State, to-wit, the State of Alabama, or for or on account of a county of the State, to-wit, Choctaw County, Alabama, being, to-wit, the said Clerk, did appropriate to her own use or the use of another not entitled thereto, without authority of law, sums of money, lawful currency of the United States of America, of the value of, to-wit, Seven Thousand One Hundred Seventy-Two and 25/100 ($7,172.25) Dollars, the exact denominations of which and a better description of which are unknown to the Relator, the said money being so received by her, the said Clerk, as such officer, or otherwise, to about the amount of Seven Thousand One Hundred Seventy-Two and 25/100 ($7,172.25) Dollars, against the peace and dignity of the State of Alabama.

9. For that said Clerk, being a public officer receiving money on behalf of, for, or on account of the people of the State, to-wit, the State of Alabama, or for or on account of a county of the State, to-wit, Choctaw County, Alabama, being, to-wit, the said Clerk, did willfully omit or refuse to pay over to the State, to-wit, the State of Alabama, its officer or agent or officers or agents authorized by law to receive the same, or to such county of the State, to-wit, Choctaw County, Alabama, or to the proper officer or authority or officers or authorities empowered to demand and receive the same, sums of money, lawful currency of the United States of America, of the value of, to-wit, Seven Thousand One Hundred Seventy-Two and 25/100 ($7,172.25) Dollars, the exact denominations of which and a better description of which are unknown to the Relator, the said money being received by her as such officer, to about the amount of Seven Thousand One Hundred Seventy-Two and 25/100 ($7,172.25) Dollars, it being then and there a duty imposed upon her by law to pay over and account for the same, against the peace and dignity of the State of Alabama.

10. For that said Clerk did use her official position or her office to obtain direct personal financial gain for herself, or her family, such gain not specifically authorized by law, in that she did place personal bank checks in an envelope in her office or did direct an employee of her office, under her direction and supervision, to place said Clerk’s personal bank checks in an envelope in her office, and in exchange for said personal bank checks, the said Clerk received monies, and she did not process said bank cheeks through her bank account, but rather allowed them to accumulate and to be kept in said envelope over a period of several months, never being cashed or processed in the manner in which bank checks are used in financial transactions, this being for her direct personal financial gain, or for that of her family, in that she thus obtained the personal use of said monies, which were public monies received by said Clerk in her official capacity or on behalf of, or for, or on account of the State of Alabama, or on behalf of, or for, or on account of the county of Choctaw County, Alabama, or received in her office for or on account of said State or said County, this obtaining of such personal use of such public monies being in the nature of unauthorized, interest-free loans, against the peace and dignity of the State of Alabama.

11. For that said Clerk, during the year 1977, or during the year 1978, or during the years 1977 and 1978, did use public funds coming into her possession as said Clerk, for her own private use or benefit, against the peace and dignity of the State of Alabama.

Charge Three alleged that the appellant had been guilty of offenses involving moral turpitude while in office. Specifications 1, 2,3, 4, 5 and 6 were put to the jury in support of Charge Three:

1. The State of Alabama hereby incorporates and adopts by reference thereof, Charge Two, Specification 6, as herein-above averred in this Amended Information of Impeachment and Prayer For Ouster, the same as if fully set out herein in verbatim.
2. The State of Alabama hereby incorporates and adopts by reference thereto, Charge Two, Specification 7, as herein-above averred in this Amended Information of Impeachment and Prayer For Ouster, the same as if fully set out herein in verbatim.
3. The State of Alabama hereby incorporates and adopts by reference thereto, Charge Two, Specification 8, as herein-above averred in this Amended Information of Impeachment and Prayer For Ouster, the same as if fully set out herein in verbatim.
4. The State of Alabama hereby incorporates and adopts by reference thereof, Charge Two, Specification 9, as herein-above averred in this Amended Information of Impeachment and Prayer For Ouster, the same as if fully set out herein in verbatim.
5. The State of Alabama hereby incorporates and adopts by reference thereto, Charge Two, Specification 10, as herein-above averred in this Amended Information of Impeachment and Prayer For Ouster, the same as if fully set out herein in verbatim.
6. The State of Alabama hereby incorporates and adopts by reference thereto, Charge Two, Specification 11, as herein-above averred in this Amended Information of Impeachment and Prayer For Ouster, the same as if fully set out herein in verbatim.

The appellant has presented three questions for our review which will be considered seriatim :

A. Whether the trial court committed reversible error by applying the Rules of Civil Procedure to this impeachment proceeding rather than the rules of criminal procedure;

B. Whether the trial court committed reversible error in refusing to grant appellant’s motion to exclude the State’s testimony and direct a verdict for the appellant; and

C. Whether the trial court erred in refusing to grant appellant’s motion for a mistrial or in the alternative to exclude testimony offered by a witness concerning acts done prior to her appointment as circuit clerk.

•A.

At the beginning of the trial proceedings the trial court made the following ruling:

A little of the ground rules. This cause is governed by the Civil Rules of Procedure. Of course, under your one and one strike. And also, except for the fact it must be-guilt must be beyond a reasonable doubt and to a moral certainty. You must satisfy the jury beyond a reasonable doubt and to a moral certainty.

Though not claiming any error in the jury selection procedure announced, the appellant has cited a number of cases in which it is stated generally that impeachment trials are criminal in nature, e. g., Parker v. State, Ala., 333 So.2d 806 (1976); Alonzo v. State, 283 Ala. 607, 219 So.2d 850 (1969); State v. Mathews, 259 Ala. 125, 66 So.2d 105 (1953). An examination of those and other cases on that subject reveals that each case concerned an issue dealing with a constitutional safeguard, not the general application of criminal rules of procedure. In Mathews, supra, the question was whether the proceeding could be initiated by private individuals through the use of private counsel without the authority of the attorney general. Alonzo, supra, concerned the legality of an impeachment proceeding being prosecuted by privately retained counsel. Parker, supra, dealt with the constitutionality of a removal from public office because of conduct occurring before the commencement of his term of office. While these and other decisions contain language describing an impeachment proceeding as a criminal proceeding, it is clear that such statements have been made in certain contexts, and that such proceedings actually possess a nature that is both criminal and civil.

The legislature has addressed itself to the manner in which impeachment trials shall proceed. Code of Ala.1975, § 36-11-14 states:

The case [an information for impeachment] . . . shall be proceeded with in all respects as civil actions are conducted .

Rule 81(a)(14), ARCP specifically encompasses impeachment proceedings “to the extent that the practice in such matters is not provided by statute.”

In State v. Washburn, Ala., 349 So.2d 20 (1977) (contrary to its position in this instance) the State of Alabama contended that the Rules of Civil Procedure did not apply to an impeachment based upon violations of criminal laws. This Court rejected that contention:

As noted, the State contends the discovery provisions of ARCP are not applicable to an impeachment proceeding concerned entirely with allegations of factual transactions which constitute violations of criminal law. We do not agree. Authorities relied upon by the State do in fact denominate impeachment proceedings as penal in nature; a criminal prosecution in which defendant has certain constitutional rights; a proceeding in the nature of a criminal prosecution; and partakes of the nature of both civil and criminal actions. See Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So.2d 858. Since such proceedings seem to be unique hermaphroditic creatures, we must look to the structures provided by the legislature and this court to determine how we must regard impeachment with respect to procedural processes.
We find no difficulty in holding that Rule 81(a)(14), ARCP, makes applicable to these proceedings the discovery rules of ARCP. Section 189, Title 41, Code, makes clear that the cause (impeachment) shall be proceeded with in all respects as civil actions at law are conducted. Section 193 provides for witness fees as in civil cases; the statutes are otherwise silent regarding discovery procedures; and this court has rule making power under our constitution; Rule 81(a)(14) supplies otherwise nonexistent procedures for the conduct of impeachment proceedings, thus it seems clear ARCP governs the conduct of this impeachment case.

It would be incorrect to conclude that there are no criminal procedure rules available in an impeachment proceeding. The defendant in such cases is entitled to certain constitutional and statutory protections accorded to defendants in exclusively criminal cases. It is clear from the trial court’s oral charge to the jury that those rights were accorded:

Ladies and gentlemen, when these charges were brought into court on the grand jury recommendation and this defendant came into court as she did do and in answer to these charges pleaded not guilty, then that function of the grand jury ceased. There is no inference of any guilt of those charges because the grand jury returned that report or because an information of impeachment was returned because this defendant, as are all defendants in this type case is presumed to be innocent of any charge until the State of Alabama has from the evidence presented here convinced you beyond a reasonable doubt and to a moral certainty of the guilt of the charges. So then, this defendant stands presumed to be innocent and that presumption goes with her at all times until you have been convinced beyond a reasonable doubt and to a moral certainty of the truth of the charge or of guilt. Now, when we tell you that you must be convinced beyond a reasonable doubt that does not mean that you must be convinced beyond all doubt. It certainly does not mean a fanciful doubt or imaginary doubt. It means just what the term implies: a reasonable doubt, and our courts have said that a reasonable doubt is a reason for arising out of the evidence, [sic] a reason that you can account for. So, if after hearing and considering all of the evidence, that of the State and that of the defendant, you have an abiding conviction of the truth of the charge, you may say that you have then been convinced beyond that reasonable doubt.

Moreover, the record fails to reveal any objection on the defendant’s part either to the trial court’s initial reference to the civil rules or to its oral instruction. The only reference to the distinction between a civil and a criminal proceeding which took place in the trial dealt with the application of a point of evidence law during the direct examination of a State’s witness, and the defendant’s objections to that proffer were sustained. Nor have we been directed otherwise to any error of the trial court in which it is alleged that the appellant has been denied substantive or procedural due process of law. Consequently we fail to find any prejudice resulting to the appellant from the trial court’s conduct of the trial under its earlier pronouncement.

B.

Under this second ground the appellant insists that there was insufficient evidence to support an impeachment under the grounds permitted by law.

Sections 173 and 175 of the Constitution of 1901 prescribe the grounds for which a circuit clerk may be removed from office. Those grounds include: willful neglect of duty, corruption in office, and “for any offense involving moral turpitude while in office . . . .” The appellant was charged with violations of each of those grounds.

Under Specification of 10 of the willful neglect of duty charge, it was alleged that the appellant failed to remit all fines, forfeitures and costs of court to the remittees provided by the law at the times required. This specification is based upon Code of 1975, Rule 4 of the Rules of Judicial Administration, paragraph (H):

The clerk and register shall, periodically, but in no event less than once a month, not later than the tenth day of each month, remit all fines, forfeitures and costs of court, including prepaid docket fees, to the official designated to receive such at the municipal, county and state level, as provided by law or rule; provided, that on September 25 of each year, the clerk or register shall remit all fines, forfeitures and costs of court, including prepaid docket fees, to the official designated to receive such at the municipal, county and state level, as provided by law or rule.

In support of this specification the State offered the testimony of Ms. LaSonia Ab-ston who was, from March 1, 1977 until April 30, 1979, chief deputy clerk and bookkeeper under the appellant. It was she who found the first shortage in October, 1977, something over Six Thousand Dollars ($6,000.00) at that time. This witness testified to the system used by the appellant in taking"cash from the office receipts and substituting her personal checks therefor, and the retention of those uncashed checks in the office as the shortage grew. At one point she stated:

[W]e were having to use money from the preceding month to make the deposits-the following month to make the deposits for the preceding month.
Because of the shortage. So that deposit was made for that account for the preceding month.

The appellant’s own testimony supported this practice:

Q . . .You took Six Thousand Dollars of the State’s money. Where did the State get their Six Thousand Dollars?
A Out of that cash box.
Q How did they do that if you had taken it over and put it in your account?
A I sent in the money that was receipted for a one month period. And by the time we got ready to make the deposits and send out checks, we were into the next month and there was enough money to cover it.
Q That’s just what LaSonia Abston testified to, wasn’t it, Mrs. Lewis?
A Yes.
Q You used June’s money to make up for what was missing in May, didn’t you?
A Yes.
Q You used Six Thousand Dollars of the State’s money.
A I wrote checks, yes.
Q How did the State get that money back?
A I borrowed the money from the bank and put it back there.
Q How many months was that after you started taking that money?
A From March of ’77 to January of ’78.
Q Eleven months?
A Yes, sir.
Q Why did you decide to pay it back after eleven months?
A I just didn’t decide then. That was the first chance I got to go down and take care of it.
Q In eleven months, that was the first chance you got to take care of it?
A That’s right.
Q What had you been doing eleven months that kept you so busy that you couldn’t walk across the street and borrow the money?
A I just never got around to it.

This evidence was sufficient on which to conclude that the appellant’s failure to perform her duty to periodically remit the fines, etc. received in her office was a willful neglect, and constituted a sufficient basis on which to find her guilty of the charge of Willful Neglect of Duty.

Specification 12 charged the appellant with willful neglect of duty for (1) allowing large sums of cash to accumulate in her office, (2) for not - maintaining an office depository under lock and key for the large accumulated sums, and (3) for instituting a practice of large withdrawals from such funds for her private use, resulting in the misappropriation or misuse of these public funds.

The appellant argues that this charge falls because the allegation did not meet the test of willful neglect of duty as determined by case law, citing Bowen v. State, 207 Ala. 672, 93 So. 412 (1922), for the proposition that:

[W]illful neglect . . . means more than the merely intentional omission of an act of public duty; that, to justify removal from office, it must appear that the incumbent is morally or mentally unfit; that unfitness is an inferential fact, to be found by the jury which the Constitution guarantees in the cases of officers impeachable . . . . [Quoted from Nelson v. State, 182 Ala. 449, 461, 62 So. 189, 193 (1913).]

The appellant maintains that not only was there no evidence meeting this standard, but that no statute required a locked cash register.

That argument is unpersuasive. The evidence establishes that until June, 1978, the cumulative cash receipts in the clerk’s office were kept in a metal box in the middle drawer of a desk, and at the end of each day this box was locked and placed in the clerk’s desk. After that date the office utilized a night deposit bag procured from a bank. The receipts were placed in that bag and kept in an office desk during the day and placed in the bank night deposit vault each night. Prior to that time bank deposits had been made once each month. The night deposits were not actually deposits but depositories for security purposes. Only the appellant and Ms. Abston had keys to the vault door. There is also evidence of substantial cash shortages before the daily security deposit was undertaken. Ms. Ab-ston found the first shortage in October, 1977, an amount over Six Thousand Dollars. That shortage had grown to Ten Thousand Dollars in November; in December it had increased to Twelve Thousand Dollars, and in January, 1978 it had reached over Fourteen Thousand Dollars. The appellant was informed of each shortage as it was discovered, yet no change in fiscal management occurred until June, 1978. At this same time the appellant was cashing her personal checks with office funds and holding those checks until she could replace the funds. These checks aggregated a little over Six Thousand Dollars in amount, although not the same Six Thousand reported as missing in October. During this time no audit was requested by the appellant although the appellant and Ms. Abston discussed that possibility. The record also establishes that another office employee confessed to having taken about Two Thousand Dollars during this period. Taken together, this evidence compels the conclusion that the appellant was guilty of more than some isolated technical violation; that she not only knowingly countenanced but promoted risky office procedures, through mismanaged cash accumulations over a period of time which not only enured to her personal benefit but resulted in other malefactions. Thus the jury’s finding of “willful neglect of duty” under Specification 12 was sufficiently established.

Charge Two, corruption in office, was alleged in seven specifications: 1, 6, 7, 8, 9, 10 and 11.

Specification One charged misuse and misappropriation of public funds by “appropriating and converting to her own use large sums of . money . from . . . March of 1977, through . the latter months of 1977 . . .” The testimony of both the appellant and Ms. Abston supports this charge. The appellant used the public funds of the clerk’s office as her personal bank, exchanging her personal checks for cash of more than Six Thousand Dollars, and knowingly retaining them against the advice of her deputy clerk and bookkeeper, for a period of time beginning in March, 1977 and ending in January, 1978 when she replaced those funds. The jury could have found from the evidence that the replacement itself was made only after the urging of the office bookkeeper. The fact that the money ultimately was repaid does not militate against the conduct alleged, from which the jury could have believed, under the evidence, that the money was withheld with intent to defraud. State v. Hasty, 184 Ala. 121, 63 So. 559 (1913).

The other specifications of Charge Two, 6 through 11, are the same specifications contained under Charge Three on Moral Turpitude. The appellant discusses these together and complains that their allegations are insufficient because: (1) none of them cites a Code section which she allegedly violated, (2) none of them alleges an intent to defraud, and (3) none of them alleges that her acts were willfully committed.

Contrary to the appellant’s position, Hasty, supra, does not require that every allegation of corruption or commission of an offense involving “moral turpitude,” made the basis of an impeachment proceeding, should specifically allege the violation of a statute. Nor does the case of Mitchell v. State, 248 Ala. 169, 27 So.2d 36 (1946), cited by the appellant, and which dealt with the requirements for an indictment for the criminal offense of conspiracy. In Hasty it is apparent that the State’s counsel was relying upon a specific offense contained in the Code of 1907 as a ground for impeachment (the conversion of county funds by officers). This Court held that:

[I]f it [the State] must rely upon the commission of an offense as covered by the fourth ground in section 173 of the Constitution, to wit, the commission of an offense involving moral turpitude while in office or committed under color thereof, the said offense should be specifically charged, as is required by section 7103 of the Code of 1907. We find no charge in the information specifically covering a violation of the foregoing statute or charging a conversion thereunder by depositing county funds in bank without requiring a bond as security for same and as is provided in the act.

Contrary to the situation in Hasty, it is not shown in this case that the State was relying upon any specific statutory violation on which to base an allegation of either corruption or the commission of an offense. The phrase “any offense involving moral turpitude” contained in § 173, Constitution of 1901, is not by its terms restricted to statutory offenses, thus it also includes offenses at common law. See, e. g., Parker v. State, Ala., 333 So.2d 806 (1976) (solicitation to commit a felony); cf. Code of Ala.1975, § 13-9^3 (common law solicitation remains an offense in Alabama). The term “moral turpitude,” moreover, describes “[t]he quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibi-ta.” People v. Ferguson, 55 Misc.2d 711, 286 N.Y.S.2d 976, 981 (1967). Specification Six under the corruption charge (Specification 1 of the moral turpitude charge) alleges that the appellant converted to her own use or to the use of another, or used by way of loans without interest, or deposit with any person or corporation, or exchanged with other funds, contrary to law in each instance, to wit, Seven Thousand One Hundred Seventy-Two and 25/100 Dollars, with which she as clerk had been entrusted.

Specification Seven under the corruption charge (Specification 2 of the moral turpitude charge) charged that the appellant had knowingly converted, to wit, Seven Thousand One Hundred Seventy-Two and 25/100 Dollars, revenue of the State, or knowingly converted to her own use that sum which had been paid into her office or received by her in her official capacity. Specification Eight under the corruption charge (Specification 3 under the moral turpitude charge) charged that the appellant, a public officer receiving money on behalf of the people of the State of Alabama, appropriated to her own use or the use of another not entitled thereto, without authority of law, sums of money of the value of, to wit, Seven Thousand One Hundred Seventy-Two and 25/100 Dollars, that money being so received by her as such officer. Specification Nine (Specification 4 under the moral turpitude charge) charged that the appellant willfully omitted or refused to pay over to the State of Alabama sums of money, to wit, Seven Thousand One Hundred Seventy-Two and 25/100 Dollars received by her as a public officer, it being her duty under law to do so. Specification Ten (Specification 5 under the moral turpitude charge) charged the appellant with having used her official position or her office to obtain direct personal financial gain for herself or her family, not authorized by law, in the practice of using money officially received in exchange for her personal checks which were not processed but retained over a period of months. Specification 11 (Specification 6 under the moral turpitude charge) charged that the appellant used public funds coming into her possession as clerk for her own private use or benefit during the years 1977 and 1978.

An information of impeachment and removal from office is not a criminal indictment, and the proceeding itself is neither exclusively civil nor criminal. Cf. State v. Hasty, supra. Additionally, the legislature has described in Code of Ala. 1975, § 36-11-7 the allegations which must be contained in the information:

Such information shall be addressed to the court before which the trial is to be had and shall specify, with reasonable certainty, the offense, offenses or other grounds of impeachment charged against the officer within the provisions of section 173 of article 7 of the Constitution and shall contain a succinct statement of the facts constituting the matters complained of and an appropriate prayer for process and rélief .

Tested by these considerations the allegations in the respective specifications sufficiently informed the appellant of those acts with which she was charged. Under the specifications of Charge Two on corruption, the jury had evidence upon which they could have found an “intent to defraud” entertained by the appellant. Whether or not it might have been better to have expressly characterized those acts as having been committed with that intent, the allegations were not fatal without it. The appellant’s reference to Hasty, supra on that point is not well taken. That case does not mandate an allegation of “intent to defraud” under a charge of corruption. Hasty does require evidence of that intent under such a charge.

Insofar as the charge of commission of offenses involving “moral turpitude,” again we are convinced of the sufficiency of the allegations under the standards to which we have alluded above. The absence of a characterization of the acts as committed “wilfully” was not fatal to those specifications. The appellant’s reference to Associated Industries of Alabama v. State, 55 Ala.App. 277, 314 So.2d 879 (1975); cert. den. 294 Ala. 281, 314 So.2d 901 (1975), is inapposite. There certain defendants had been convicted of violating the Corrupt Practices Law which made it an offense to “wilfully” fail or refuse to do certain acts required under that law. The Court of Criminal Appeals ruled that the indictment in that case was defective because it did not allege that the acts in question were “wil-fully” done. As we have shown there is no requirement under the statute applicable here (commission of an offense involving moral turpitude while in office) that the acts made the basis of impeachment proceedings be “wilfully” done.

C. '

The appellant’s final point concerns the admission of certain evidence offered by the State. The State had called as a witness the appellant’s immediate predecessor, Murray Gibson. During his direct examination the following exchange occurred:

Q Did you have occasions as the Clerk of the Circuit Court of Choctaw County, Alabama, to tell Mrs. Lewis, when she came into your employment, how the money must be handled in the Clerk’s Office under your administration?
MR. GILMORE:
Your Honor, we object to this line of questioning. It’s just putting words in this witness’ mouth. He is not letting the witness answer to any particular thing and tell what happened.
THE COURT:
Overruled.
A Would you state that again.
Q I realize it’s difficult. Did you have occasion to tell Mrs. Lewis how the money should and would be handled under the Laws of the State of Alabama in your administration?
A. Yes. We sat down and discussed it: And normally we made about two deposits a week or sometime a deposit once a week, depending on how much work was available and so forth and so on. With one help handling all the cases, one person doing it, you couldn’t make it every day. The main thing I considered the most important thing-
MR. GILMORE:
Your Honor, we object to what he considers.
THE COURT:
Sustained.
Q Just tell us what you told her, Mr. Gibson.
A Liz told me she had' just-when I asked her-
MR. GILMORE:
We object to this.
THE COURT:
Overruled.
Q You may answer, Mr. Gibson.
A Elizabeth told me she had about Twenty-Five Hundred Dollars worth of her checks back there. I told Liz, let’s go down to the bank and get the money right now, which I did. And I endorsed the note with her at the First National Bank.
Q What if anything did you tell her about doing this?
A I just told her we couldn’t do that and were not going to do it any more.
Q As a matter of fact, as Clerk-did you know as Clerk of the Circuit Court of Choctaw County, Alabama, that using that money would be against the State Law?
MR. GILMORE:
We object.
THE COURT:
I sustain that.
Q What did you tell Mrs. Lewis after she told you she had Twenty-Five Hundred Dollars in her personal checks back there in the bank?
A We went down, back down and added them up to make sure of the total, which I don’t exactly remember. She went down to the Bank, the First National Bank, and we borrowed the money and put the money back in that day.
Q Had you ever given her permission as Clerk of the Circuit Court to take money out of that office and substitute her personal checks for it?
A No.
Q Did you tell her after this happened never to let that occur again while you were the Clerk of the Circuit Court of Choctaw County?
MR. GILMORE:
We object.
THE COURT:
Come up here a minute, gentlemen.
(THE FOLLOWING OCCURRED IN CHAMBERS, OUTSIDE THE PRESENCE OF THE JURY)
MR. UTSEY:
We want to move for a mistrial, Your Honor, based on the Assistant Attorney General asking questions and eliciting testimony concerning a specific alleged act done by Mrs. Lewis prior to the time she took office. That is testimony to the effect, that while he was, Mr. Gibson was Circuit Clerk, that she had some Twenty-Five Hundred Dollars worth of checks in the cash box. And we feel that testimony is in no way relevant to the issues in this case, has nothing to do with the term of office this lady is now holding. And is so prejudicial that it cannot be eradicated from the minds of the Jury. And this case should be a mistrial at this point based on that.
THE COURT:
I deny your motion. I make known that you have a right to renew at any time your objections, if this thing doesn’t [dovetail in]. At this point in time, I deny your motion.
MR. UTSEY:
Your Honor, we would also request and that the Court-if the Court will not grant a mistrial, to exclude that testimony from the Jury and give the Jury an instruction concerning the testimony concerning a specific incident involving Mrs. Lewis that occurred prior to the time she took office.
THE COURT:
No, sir, I deny your motion on that. This was January, I think he said January.
MR. UTSEY:
No, sir, said sometime during 1977. Couldn’t remember when.
THE COURT:
I think he said about January. This was shortly before. It’s admissible in my opinion, if nothing more to show the duties and responsibilities of the Office. And I will deny your motion at this time. But you have been leading. Let’s get away from that. That’s the reason I mentioned-
MR. GILMORE:
We reserve exception.
(THE FOLLOWING OCCURRED IN THE PRESENCE OF THE JURY)
(Continuing on Direct Examination)
BY MR. VALESKA:
Mr. Gibson, after this incident occurred, y’all went down and got the money?
A Yes, sir.
Q And replaced it. Did you, as the Circuit Court Clerk, put Mrs. Lewis on any type notice concerning these type transactions?
A No, sir. You mean as far as putting her on notice, she was going to be fired if she did it again?
Q As to whether or not she could do it again?
A No, she knew she couldn’t do it.
Q She knew she couldn’t do it. Thank you. Your witness.

The appellant maintains that the admission of the evidence concerning the appellant’s check-cashing practices prior to her term in office was reversible error. We cannot agree. In the first place, the record reveals that no objection was made to the evidence when it was admitted. The objection was made too late, and no showing of surprise has been indicated. Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974). Moreover, the record reveals that only a general objection was made, albeit tardily. “It is generally recognized that a specific objection is a condition precedent to appellate review while a general objection is a waiver of appellate review.” McElroy's Alabama Evidence, § 426.01(7) (3d ed. 1977).

The appellant argues further, however, that the admission of this prior act was prejudicial to reversal, having no relevance to the appellant’s conduct of her office because it occurred prior to the time she assumed the position of circuit clerk. Parker v. State, supra, is cited in support of that argument. In Parker, however, the defendant was impeached for an act which occurred before he assumed his official position. Here the act admitted into evidence is not one for which the appellant was impeached but one which the State maintains bore upon the proof of her impeachable conduct while in office’. In that connection the opinion of this Court in State v. Mathews, supra, 259 Ala. at 140, 66 So.2d at 118, is pertinent:

The acts of a respondent [being impeached] during a previous term may be considered as evidential facts, in so far as they are connected with or bear upon the respondent’s general course of conduct during the second term, for the limited purpose of inquiring into the motive and intent of the respondent as to the acts and omissions charged to him during the second term, but an official cannot be removed because of his conduct during a previous term. .

There was a logical connection between the same kind of acts committed by the appellant before and after she became circuit clerk. The prior act of substituting her personal checks was relevant upon the charges and specifications to which that conduct was related, as bearing upon the appellant’s motives and intentions in the performance of her official duties. Thus that evidence was admissible.

We also note that the appellant herself admitted on her direct examination that on occasion when Murray Gibson was clerk she had drawn money from the drawer and replaced it with checks to hold. A defendant cannot complain of the admission of improper evidence when he himself has testified to the same facts. Yelton v. State, 294 Ala. 340, 317 So.2d 331 (1974); Ala. Dig. Crim. Law § 1169(2).

The judgment is due to be and hereby is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: MADDOX, Justice.

text:
    John H. MARSHALL v. Harry C. HOWZE et al.
    79-43.
    Supreme Court of Alabama.
    Aug. 29, 1980.
    Clifford W. Hardy, Jr., Bessemer, for appellant.
    Archie T. Reeves, Jr. of Reeves & Stewart, Selma, for appellee.
   MADDOX, Justice.

This is an appeal from a final decree confirming a sale for division among joint owners of approximately 987 acres of land in Perry County. Appellant John Marshall, the owner-respondent in the trial court, owned an undivided Vuth interest in the property. All the other owners (appellees) wanted the property sold for division.

The trial court ordered the land sold for division and appointed a commissioner to conduct the sale. A public sale was held at the Perry County Courthouse and at that time, the land was sold to the highest bidder for the sum of $645,000.

By final decree, the trial judge confirmed the sale and ordered distribution of the proceeds. He ordered the clerk to distribute the principal sum of $25,072.08, plus interest, to appellant, and this was done on September 11, 1979; appellant has never returned to the clerk the sum distributed to him pending his appeal.

I

As we understand appellant’s argument on the merits, he claims that the trial court erred in failing to continue the hearing on the confirmation of the public sale on the ground that “mineral rights were not separately considered because of mistake and inadvertence.”

It is hornbook law, of course, that a motion for continuance addresses itself to the sound discretion of the trial court, and its ruling will not be disturbed on appeal except for a clear showing of abuse of discretion. 2A Ala.Dig., Appeal and Error, Key No. 966(1). There is nothing in this record which shows that the trial judge abused his discretion.

We now consider appellant’s argument that the sale should not have been confirmed because (1) the mineral interests were not separately appraised, and (2) the advertisements failed to contain information regarding the mineral interests. After studying appellant’s arguments and reviewing the record, we are of the opinion that appellant’s contentions are insufficient to warrant our setting aside the order of the trial court. Courts must guard against rendering judicial sales unstable by setting them aside too freely. Mitchell v. Stone, 295 Ala. 378, 330 So.2d 433 (1976). In reaching the opinion we reach in this case, we have applied the rule appellant requests us to apply to the effect that the prime objective in all cases involving sales for division is to sell the property so as to realize the best price obtainable. Copeland v. Giles, 271 Ala. 302, 123 So.2d 147 (1960). This record does not indicate that that prime objective was not realized in this case. There is ample evidence in this record to support the trial court’s confirmation of a public sale. Land was sold to a stranger, and brought $50,000 more than the appraised price. Consequently, we find that the trial court’s determination to confirm the sale was not palpably erroneous or manifestly unjust. Sieben v. Torrey, 252 Ala. 675, 42 So.2d 621 (1949).

II

The appellees filed a motion to dismiss the appeal on the ground that the appellant has received his part of the proceeds of the sale and now appeals from a decision from which he has accepted the fruits. The motion to dismiss, of course, has merit. In Bell v. Crowe, 221 Ala. 609, 130 So. 377 (1930), which involved an identical factual situation as this appeal, this Court dismissed the appeal on that ground. We could dismiss this appeal on this ground, but since we affirm the judgment anyway, the result is the same. We, therefore, deny the motion to dismiss the appeal, and have decided the case on its merits in order to assure its just determination. Rule 1, ARAP.

AFFIRMED.

TORBERT, C. J., and JONES, EMBRY and BEATTY, JJ., concur.


text:
    Kermit McCAIN v. REDMAN HOMES, INC.
    79-223.
    Supreme Court of Alabama.
    Aug. 29, 1980.

      John A. Tinney, Roanoke, for appellant.
    F. J. Allen, II, Boaz and James C. Stiven-der of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   BEATTY, Justice.

Appeal by the plaintiff from the denial of his motion for a new trial. We reverse and remand.

Kermit McCain, the plaintiff, was driving his automobile on U. S. Highway 431 a few miles north of Wedowee when his automobile collided with the defendant’s on-coming truck-tractor which was pulling one-half of a mobile home. The cause of the collision was disputed, but immediately following the collision McCain’s automobile was dragged forward by the truck and came to rest partially underneath the mobile home. Some of the 2X6 timber units which supported the mobile home entered the McCain car through the rear glass, passed through the rear seat and came to rest against the rear of the front seat, pushing it forward. McCain was pinned inside his automobile for about forty minutes before being removed. He was first taken to the Wedowee Hospital, but then was transferred to the North Alabama Regional Medical Center in Anniston. Upon admission there he was found to have: an anterior dislocation of the right hip; a posterior dislocation of the left hip; a compound comminuted fracture of the right tibia; a closed fracture of the left tibia; fractures of the second, third, fourth and fifth ribs on his right side; a fracture of the right pelvis; and a fracture of the sacroiliac joint. Both of McCain’s legs were put in casts; holes were drilled through his legs and pins inserted in these for traction purposes. He suffered a hemorrhage in his right lung resulting in an irritation of the lung lining.

McCain was hospitalized from December 22, 1978 until February 8, 1979. Until January 25, 1979 he was immobilized in bed. On that date he began therapy in order to develop his ability to stand and walk.

In April, 1979 Redman Homes, Inc. (Red-man) brought this action against McCain, charging him with negligence or wantonness in causing damage to Redman’s mobile home, and asking Ten Thousand Dollars damages. McCain’s answer denied the plaintiff’s allegations, inter alia. He counterclaimed against Redman for its negligence or wantonness, and demanded One Hundred Fifty Thousand Dollars damages for his pain and suffering, mental anguish, his permanent injuries, his past, present and future medical expenses, and for the loss of his automobile.

A jury trial ensued. During the course of the trial the parties stipulated to the following items of McCain’s expenses: $9,570.00 medical bills for hospital and physician’s services, therapy and a walker; $500.00 in drug bills; and $900.00 for his automobile, or an aggregate of $10,970.00.

After closing arguments the trial court gave its charge to the jury which included the following:

Now, when a person is damaged by another one, you compensate them for the damage. So I’ll have to give you the rules of how to arrive at the compensation for these different things. Now, for past, present, and future medical expenses if you will determine that Redman Homes is liable for it, then you will assess the amount of damages for the medical expenses. They’d have to pay all the medical expenses that have already been paid which agreed upon [is] $10,570 plus any that he’s likely to have in the future. Also, about the property damage to his Chevrolet automobile. If you are reasonably satisfied that Redman should pay for that, then that is $900.' Now, physical pain, suffering, and mental anguish. To compensate him for that we have no yard stick. I can’t say do it this way. I can’t say what you base it on. It’s within your discretion. But it must be sound discretion and not emotional and so forth. You assess what you think would be a reasonable amount to compensate him for the pain and for suffering that he has suffered and what he may suffer in the future if you think he may. suffer some in the future.
Permanent injuries. There has been testimony that he claims that he has been permanently injured. Now, there’s no yard stick for that except that you can consider the fact that his earning capacity has been decreased. And I believe he has according to the mortality table there 16 more years to live. So you in your discretion assess an amount for that. But it is a reasonable amount and not unbridled discretion on your part.
Now, on the cross claim which I have labeled here, the McCain suit, the form of your verdict will be - depending on what you decide - we the jury find for defendant cross claimant, Kermit McCain, and assess his damages at so much. So many dollars not less than 10,000 - I mean $11,470 and not more than the hundred and fifty thousand dollars claimed in this suit.

During their deliberations the jury proffered a written question to the court, viz.:

What would be the least amount we could award Kermit McCain?
The trial court responded:
As previously instructed, in the event you find for Kermit McCain you can award him an amount not less than $10,-970.00 nor more than $150,000.

In due course the jury returned a verdict in favor of McCain in Redman’s action against him, and in favor of McCain on his counterclaim against Redman, fixing his damages at $10,970.00. McCain moved for a new trial, maintaining that the damages were inadequate. That motion was overruled and McCain appealed.

The appellee poses the issue in this manner:

Whether or not the Trial Court erred in refusing to grant Appellant-McCain’s motion for a new trial based on the inadequacy of damages where the jury award was the exact amount as instructed by the Court and where no objection to said instruction was raised at any time by Appellant-McCain.

This statement of the issue is based upon two premises: (1) That the $10,970.00 figure contained in the trial court’s response to the jury’s question was objectionable; and (2) Having failed to object to that instruction, the appellant waived the right to move for a new trial on the ground of inadequate damages.

The appellee is correct in its assertion that Rule 51, ARCP requires an objection to an improper charge in order to predicate error upon it:

No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper charge unless he objects thereto before the jury retires .

The use of the phrase “As previously instructed” in the trial court’s response rendered the entire charge ambiguous. In the first instruction, quoted above, the trial court not only instructed the jury upon the special damages proved by dollar amount, but also charged them on pain, suffering and mental anguish: “You assess what you think would be a reasonable amount to compensate him for the pain and for suffering that he has suffered” (in the jury’s sound discretion). Then the trial court instructed on permanent injuries: “There has been testimony that he claims that he has been permanently injured. ... So you in your discretion assess an amount for that. But it is a reasonable amount . . This was followed by an instruction explaining the use of the verdict forms utilized on McCain’s counterclaim: “[T]he form of your verdict will be - depending on what you decide - we the jury find for Defendant cross [counter] claimant, Kermit McCain, and assess his damages at so much. So many dollars not less than 10,000 - I mean $11,470 and not more than the hundred and fifty thousand dollars claimed in this suit.”

Viewing the instructions as a whole, they were “otherwise improper” under Rule 51, ARCP because they were confusing, authorizing at one time a minimum amount of damages of $11,470.00 and at another time $10,970.00. Thus an objection could have been made to that aspect of the charge.

The evidence was uncontradicted that the appellant sustained painful injuries. The attending physician associated pain with these injuries and the appellant himself testified to his pain. Moreover, the evidence was uneontradicted that the appellant sustained permanent injuries. The physician testified that the .fracture of the pelvis on his right side resulted in a shortening of his left leg, approximately an inch shorter than his right leg, and that this condition could not be corrected in the future. The jury found against Redman on its action and in favor of McCain on his counterclaim. That verdict was a judgment on the facts as to liability. Therefore the jury was obliged to give “substantial compensation for substantial injuries.” Walker v. Henderson, 275 Ala. 541, 156 So.2d 633 (1963). Although the jury did award $10,-970.00 to McCain, this sum clearly did not include anything for proven physical pain, mental suffering, or permanent injuries. Bibb v. Nelson, Ala., 379 So.2d 1254 (1980); cf. Dunn v. Beasley, 42 Ala.App. 51, 151 So.2d 791 (1963).

Did McCain waive the right to raise that issue on appeal by not objecting to the charge? That question is answered by the claimed error itself. Rule 51 by its express terms applies only to assignments of error on the trial court’s giving or refusing to give a jury instruction. Here the appellant does not contend that the trial court erred. Had the appellant done so, he could not prevail because he did fail to object. Here the appellant complains that the jury erred by not awarding adequate damages. Rule 51 does not apply to that error even though the reason for that award may have been due to the trial court’s response to the jury’s question.

Code of Ala.1975, § 12-13-11 states:

(a) On motion filed within 30 days from entry of judgment, a new trial may be granted for the following grounds:
(4) Excessive or inadequate damages.
(8) Error of law occurring at the trial and properly preserved by the party making the application.

Under that statute a party is given a right to ask for a new trial for (8), preserved errors of law. Rule 51, ARCP complements that ground, which is a separate and distinct ground from (4), the ground of inadequate damages. Were we to deny a party his statutory right to assign inadequate damages as a ground for a new trial because that ground is related to the trial court’s instructions, the effect would be to abrogate the clear and unconditional language of subsection (4) by placing that language within the terms of subsection (8). This Court possesses no such amendatory power.

For the foregoing reasons the judgment denying the motion for a new trial must be, and is, reversed, and the cause is remanded for a new trial. It is so ordered.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: PER CURIAM.

text:
    Patrick M. SIGLER and Margaret H. Sigler v. CITY OF MOBILE, etc., et al.
    79-245.
    Supreme Court of Alabama.
    Aug. 29, 1980.

      Jim H. Fernandez of McFadden, Riley & Parker, Mobile, for appellants.
    William R. Lauten, Mobile, for appellees City of Mobile and Mobile City Planning Commission.
    Hardy B. Smith, Mobile, for intervenors Flora M. Gaillard and Mary A. Gaillard.
    G. Sage Lyons and J. P. Courtney, III of Lyons, Pipes & Cook, Mobile, for interve-nors Lee W. Roe, May Roe and Marylyn G. Chamberlain.
   PER CURIAM.

The trial court denied the landowner’s petition for writ of mandamus in which he asked the court to order the City Planning Commission to issue its approval of a small resubdivision as defined by the Commission’s regulations. He then appealed. We reverse and remand.

The issue presented on this appeal is controlled by our holding in Smith v. City of Mobile, 374 So.2d 305 (1979). There, we held that the reason assigned by the City Planning Commission in denying Smith’s proposed resubdivision was an invalid reason and exceeded the authority vested in the Commission by the legislature. There, the Commission disapproved the proposal because “it was out of character with other lots in the area.” In this case, Sigler’s application was similarly denied on at least three separate occasions.

The question here is whether Sigler should be required to resubmit his proposed plan to the Planning Commission for reconsideration in view of our holding in Smith, as the Planning Commission contends, or whether he is entitled to a writ of mandamus directing the Planning Commission to approve his plan, as he contends.

As was pointed out in Smith, the Planning Commission has only such authority as has been specifically delegated to it by the legislature. In passing judgment on a landowner’s proposed subdivision, it must assign its reasons for denial within thirty (30) days. If it does not do so, approval is automatic under the statute. An invalid reason is equivalent to no reason; thus, under the statute, the proposed plan is “deemed approved.”

When government restricts the use to which one may put his property, due process requires that notice of such restrictions be afforded the landowner. In denying a proposed subdivision, the Planning Commission is bound by its own regulations. Under those regulations, a proposal may not be denied approval because it is “out of character with the neighborhood.”

We are, of course, sympathetic with neighbors who would preserve the neighborhood as it is, and appreciate their desire to protect the aesthetic quality of the area. However, these are concerns which should be directed to the zoning authorities or some other appropriate agency. They cannot be the basis for denying a property owner the right to divide his property so long as he complies with the controlling law and regulations. Sigler has done that and the Planning Commission has denied approval of his proposals time after time, each time assigning as the reason an invalid one. If that were permitted by the statute, the process would be endless. The legislature avoided that dilemma by mandating approval unless the proposal was denied and a valid reason assigned justifying the denial within thirty (30) days.

On the record before us, it is clear that Sigler is entitled to have his proposal to divide Lot 2, Roe Property, into two (2) lots (as depicted by Exhibit 51 introduced below), approved.

The judgment of the trial court denying Sigler’s petition for writ of mandamus is reversed, and the cause remanded for the entry of a judgment consistent herewith.

REVERSED AND REMANDED.

MADDOX, JONES, SHORES, EMBRY and BEATTY, JJ., concur.


text:
    Richard SUTER and Gail Suter v. ARROWHEAD INVESTMENT CO., LTD.
    79-256.
    Supreme Court of Alabama.
    Aug. 29, 1980.

      Marlin M. Mooneyham, Montgomery, for appellants.
    Richard B. Garrett of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellee.
   MADDOX, Justice.

This is an appeal from the judgment of the trial court granting specific performance to the seller and awarding the seller incidental damages and other relief. The trial judge heard the testimony ore tenus and after considering documentary evidence introduced, made extensive findings of facts and conclusions of law, which we incorporate herein:

FINDINGS OF FACT AND DECREE
This matter is before the Court on evidence presented ore tenus and in the form of documents at the nonjury trial of this case on May 30, 1979. Based on the pleadings, documents and testimony by witnesses, the Court hereby enters the following Findings of Fact and Decree:
On July 4, 1978, Plaintiff, Arrowhead Investment Company, Ltd., a limited partnership, entered into a written contract with Defendants, Richard M. Suter and wife, Gail S. Suter, for the sale of a townhouse and lot located at 41 Tecumseh Drive, Montgomery, Alabama. Plaintiffs paid $500.00 as consideration or earnest money, and agreed to pay the price of $66,950.00 for the townhouse. The contract further provided that Defendants could reside in the house for a period of six weeks rent free while their loan was being processed and closed. Defendants moved in on July 14, 1979 and executed a “move in” agreement acknowledging that the house and all improvements had been fully completed in a satisfactory and workmanlike manner and agreeing to close said sale within three days from the date of receiving notification that the loan was ready for closing. On or about that same date Defendants delivered to Mr. Mark Tiller, one of the general partners of Plaintiff, a punch list containing several items which needed to be done by Plaintiff.
On or about Thursday, August 24,1978, Plaintiff and Defendants were notified that Defendants’ loan had been approved and that a closing had been set for Monday, August 28 at 1:30. Several discussions were had regarding the failure of Plaintiff to complete all of the items on the punch list. It was finally agreed by Plaintiff and Defendants that the closing attorney would hold $300.00 in escrow until these items were done.
On Monday, August 28, at approximately 12:30 P.M., Defendants notified the realtor that they would not close and, in fact, failed to appear at the closing. The Defendants were on August 30,1978, again notified in writing that the loan closing was set for Tuesday, September 5, 1978, at 1:30 P.M. Again Defendants refused to close and failed to appear at the closing. Defendants moved out of the townhouse located at 41 Tecumseh Drive and moved into housing on Maxwell Air Force Base on or about August 30, 1978.
Plaintiff took said townhouse off the market and on September 25, 1978, filed suit seeking specific performance of the contract of July 4, 1978, and praying for incidental damages caused by the delay in closing.
The Court finds that Plaintiff incurred the following incidental damages as a result of Defendants’ failure to close: Rent pursuant to the move-in agreement in the amount of $10.00 per day for 49 days which amounts to $490.00; interest on Plaintiff’s construction loan in the amount of $66,950.00 for the period August 28,1978, to October 20,1978, at 9Vs% per annum, and for the period October 20, 1978 to the date of the closing at 12% per annum; any discount or points in excess of Fk% of the loan amount; maintenance fee paid to the Arrowhead Townhouse Homeowners Association in the amount of $52.50; prorated and valorem taxes in the amount of $12.58 per month; water bill for water used by Defendants while in possession in the amount of $9.56; gas bill for gas used by Defendants while in possession in the amount of $9.54; attorney fees to Plaintiff’s attorney in the amount of $1,500.00 plus expenses in the amount of $221.70.
Based on the above findings of fact, this Court holds that on July 4, 1978, Plaintiff and Defendants entered into a written contract for the sale of 41 Tecumseh Drive which is further described as Lot 31, according to the Map of Arrowhead Townhouses Plat 1-A, as said map appears of record in the Office of the Judge of Probate of Montgomery County, Alabama, in Plat Book 27 at page 273; that although there were subsequent oral discussions between the parties as to the completion and correction of certain punch list items, there was no subsequent agreement in writing and the original written contract cannot be subsequently modified or changed by oral agreements. Jones v. First National Bank, 206 Ala. 203, 89 So. 437 (1921).
This Court holds further that Plaintiff is entitled to specific performance of the July 4, 1978 contract and further that Plaintiff is entitled to incidental damages to place Plaintiff back in the same position it would have been had Defendants closed the loan on August 28, 1978. Wray v. Harris, 350 So.2d 409 (1977); Bruner v. Hines, 295 Ala. 111, 324 So.2d 265 (1975).
It is, therefore, ORDERED, ADJUDGED and DECREED, that Defendants are ordered forthwith to specifically perform said sale in accordance with the terms of the contract of July 4, 1978, and to execute any and all documents and pay any and all sums of money necessary to effect such specific performance, and
It is further ORDERED, ADJUDGED and DECREED that Defendants are ordered to pay to Plaintiff the sum of $10,-231.22 which sum represents the incidental damages computed to August 1, 1979, which sum is to be increased at the rate of $22.42 per day up to the date of closing of the sale. These computations were based upon a projected discount of 2lh% of $66,950.00 and are to be adjusted at the time of closing to reflect the actual discount paid over 1W%> of $66,950.00.
Defendants are also ordered to pay the costs in this proceeding, for which execution may issue.
DONE, this 27th day of July, 1979.
/s/ Perry Hooper CIRCUIT JUDGE

Appellant raises the following issues on appeal:

(1) Did the trial court err in overruling appellants’ motion for new trial on the ground that the order of specific performance was contrary to the law and evidence of the case?

(2) Did the trial court err in awarding damages in the amount of $10,231.22?

(3) Did the trial court err in ordering that damages be increased at the rate of $22.42 per day up to the date of closing?

As to the first issue raised by the appellants, it is well settled that the granting or denying of a motion for a new trial is a matter resting primarily in the discretion of the trial judge and the exercise of discretion carries with it a presumption of correctness. Taylor v. Birmingham News Co., 341 So.2d 689 (Ala.1977).

Appellants’ main argument is that the parties orally agreed to change the closing date and that the trial judge erred in holding that the “original written contract could not be modified or changed by oral agreement.”

We interpret this statement of law by the trial judge in his decree to be a statement by him of the general rule to the effect that a contract required by the statute of frauds to be in writing cannot be modified by subsequent parol agreement. Weatherwax v. Heflin, 244 Ala. 210, 12 So.2d 554 (1943). From a reading of the entire decree, we find that it is apparent that the trial judge applied equitable principles in decreeing specific performance. In any event, the trial judge did not consider that any oral modification of the written contract was of a nature which could be set up as a bar to specific performance. See Cowin v. Salmon, 244 Ala. 285, 13 So.2d 190 (1943). This Court stated in Cowin that:

An oral modification in favor of defendant, even though it may not be enforceable because of the statute of frauds, may be set up as a bar to specific performance. 58 Corpus Juris 980, § 164, note 85, p. 981, § 165, note 93; Waterman on Specific Performance, § 489.

244 Ala. at 295, 13 So.2d at 198. Under the facts of this case, however, we do not hold that the .trial judge erred in refusing to allow the buyers to set up the alleged oral modification as a bar to specific performance. As this Court recently said in Wray v. Harris, 350 So.2d 409 (Ala.1977):

It is true that “[t]he equitable remedy of specific performance of agreements for the sale of lands rests largely in judicial discretion, directed and regulated by defined rules.” Carlisle v. Carlisle, 77 Ala. 339, 341 (1884).

350 So.2d at 412. Also, the decision by the trial court to grant specific performance was based on testimony heard ore tenus. Unless the decision by the Court is plainly and palpably erroneous and contrary to the great weight of the evidence, we should affirm it. Hall v. Polk, 363 So.2d 300 (Ala. 1978).

The appellant also contends that the trial judge made his decision, or a part thereof, without sufficient evidence to support his findings. The trial judge did find that the parties agreed “that the closing attorney would hold $300.00 in escrow” until the repairs were complete. The evidence does not directly show that there was such an agreement; however, the evidence does show that the seller did discuss the escrow with appellant, Mrs. Suter, and that the seller did contact the closing attorney requesting that he put $300.00 in escrow. There was sufficient evidence, therefore, upon which the trial judge could infer that the seller was acting in good faith and attempting to protect the buyers while closing the loan at the earliest possible time. We hold that the buyers have failed to show by this argument that the trial judge abused his discretion in granting specific performance.

As a second issue, the buyers contend that the trial court erred in awarding as incidental damages $10,231.22 when the seller only claimed $9,921.36 at trial. We note that seller’s complaint mentions no specific dollar amount as damages. Rather, seller asked for such other relief as “in equity and good conscience it may be entitled.” Rule 54(e), ARCP, states in pertinent part:

Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

The award of $10,231.22 by the trial court was not error, because it was supported by credible evidence. In a litigated case, the prayer does not necessarily limit the amount of recoverable damages. Cf. Brown v. Burr-Brown Research Corporation, 378 F.2d 822 (5th Cir. 1967).

Likewise, the decision by the trial court that the incidental damages should be increased by $22.42 per day, up to the time of closing, is within the discretion of a court sitting in equity. The amount awarded represents the sum computed by the trial judge to be in excess of the discount rate at the time of the original closing. We find no error in that aspect of the court’s decree because the trial court, applying equitable principles, was authorized to make those findings under the evidence presented.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.