Anderson v. W. T. Grant Co.

• Decision Date: 19 August 1969
• Docket Number: 1 Div. 353
• Citation: 226 So.2d 166,45 Ala.App. 105
• Parties: D. C. ANDERSON v. W. T. GRANT COMPANY.
• Court: Alabama Court of Appeals

Page 166

226 So.2d 166

45 Ala.App. 105

D. C. ANDERSON v. W. T. GRANT COMPANY.

1 Div. 353.

Court of Appeals of Alabama.

Aug. 19, 1969.

Fred F. Smith, Jr., Prichard, for appellant.

Perloff & Reid, Mobile, for appellee.

PRICE, Presiding Judge.

W. T. Grant Company brought suit against D. C. Anderson in the Court of General Sessions of Mobile County, Alabama. The complaint contained one count, which read as follows:

'Plaintiff claims of Defendant $200.30 due by contract made by him on to-wit: 4--9--66. Defendant failed to pay said contract according to its terms. By said contract defendant waived all rights of exemption and agreed to pay a reasonable attorney's fee, which is claimed in the amount of $66.77.'

Judgment by default was rendered against Anderson.

The case was brought to the circuit court by statutory certiorari for trial de novo under the provisions of Sections 478 and 484, Title 13, Code 1940.

Upon removal of the cause to the Circuit Court of Mobile County, W. T. Grant Company amended its complaint by adding Count II, claiming $200.30 due by account. The defendant filed motion to strike Count II, on the ground that the plaintiff changed his cause of action from claiming upon a contract to a suit on account and that such change worked a discontinuance of the cause. This motion was denied.

The motion to strike was properly denied. Count II was not departure from the cause of action stated in the original complaint in the Court of General Sessions. See Schuessler & Co. v. Wilson, 56 Ala. 516. Joinder in the same complaint, of separate counts charging breach of contract and the common counts is expressly authorized by Section 219, Title 7, Code 1940, and is not a misjoinder. Tuskaloosa County v. Logan, 57 Ala. 296; Crandall-Pettee Co. v. Jebeles & Colias Conf. Co., 195 Ala. 152, 69 So. 964.

The cause was tried by the court without a jury. Judgment was rendered in favor of plaintiff and against the defendant.

Mr. Johnson, Credit Manager for W. T. Grant Company, testified his books and records show that the original credit application was made in the name of D. C. Anderson, but he had no personal knowledge as to who made the application. Three contracts signed by Hattie Mae Anderson, defendant's wife, used for the purpose of making 'add ons' to the original account were introduced in evidence. The account claimed as past due was created by these 'add-on' contracts and they were not signed by D. C. Anderson. The only items bought on the account consisted of clothing. Mr. Johnson stated he spoke to defendant about the account on several occasions and went to see him in October of 1966, and that defendant promised to pay the bill by the end of the month. The balance past due on the account is $200.30.

Mr. Johnson testified on cross examination that the three contracts constituting the account were not signed by D. C. Anderson, but were signed by Hattie Mae Anderson, his wife; that the contract reads that the buyer is D. C. Anderson; that defendant, on more than one occasion, promised to pay this debt.

D. C. Anderson testified he had never opened a charge account nor signed a contract with W. T. Grant Company and had never authorized his wife to open an account or sign his name to a contract; that Hattie Mae Anderson is his wife...