Ahrens-Rich Auto Co. v. Beck & Corbitt Iron Co.

• Decision Date: 26 March 1925
• Docket Number: 6 Div. 359
• Citation: 103 So. 556,212 Ala. 530
• Court: Alabama Supreme Court
• Parties: AHRENS-RICH AUTO CO. v. BECK & CORBITT IRON CO.

103 So. 556

212 Ala. 530

AHRENS-RICH AUTO CO. v. BECK & CORBITT IRON CO.

6 Div. 359

Supreme Court of Alabama

March 26, 1925

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by the Beck & Corbitt Iron Company against the Ahrens-Rich Auto Company. Judgment for plaintiff, and defendant appeals. Affirmed.

David R. Solomon, of Birmingham, for appellant.

Robert E. Smith, of Birmingham, for appellee.

MILLER J.

This is a suit by Beck & Corbitt Iron Company, a corporation, against Ahrens-Rich Auto Company, a corporation, on three separate promissory notes, and on account stated, and for goods sold and delivered. There were five counts in the complaint. The defendant did not demur to any of them, but pleaded general issue in short by consent, with leave to give in evidence any matter, which, if well pleaded, would be admissible in defense of the action. The jury returned a verdict in favor of the plaintiff, and from a judgment against the defendant thereon by the court, this appeal is prosecuted by the defendant.

The appeal is on the record proper, without a bill of exceptions and the only question presented is the sufficiency of the complaint to support the judgment. The judgment is the only error assigned. The judgment was for $317.05, the amount of the verdict of the jury. Does the complaint disclose a cause of action, or causes of action, authorizing a verdict for $317.05? There are five counts in the complaint. Counts 1, 2 and 3 are each on three separate promissory notes for $90.19 each, executed on November 30, 1920, and payable April 1, May 1, and June 1, 1921, respectively, and plaintiff claims in each count $25 attorney's fee, and avers defendant agreed in each of the notes to pay a reasonable attorney's fee if it was not paid at maturity. The plaintiff claimed in each count interest at the rate of 6 per cent. per annum on the amount of each note.

If the complaint contains no substantial cause of action, "its insufficiency will not be cured by plea to the merits," and this court has held in Cummins v. Gray, 4 Stew. &amp P. 397, that:

"Many defects in a declaration may be cured, by pleading to the merits, either before or after a demurrer. So far as this effect has been produced, the plaintiff is entitled to the benefit of it, whenever the question subsequently recurs, whether on a second demurrer, on a motion in arrest of judgment, or in error. Where, however, the declaration does not contain a substantial cause of action, the insufficiencies cannot be cured by a plea to the merits."

This was cited with approval in Taylor v. Jones, 52 Ala 78. Are the counts on the three separate promissory notes fatally insufficient? Do they each state a substantial cause of action? The defendant insists each is fatally defective, do not state a substantial cause of action, because neither alleges a breach of the note by the defendant, that each is unpaid. This is not necessary now, under form No. 1, on a promissory note under our statute. Section 5382, Code 1907. This form does not require plaintiff in action on a promissory note to allege that it is unpaid, and a count which alleges the cause of action in accordance with this form (No. 1) of this statute is sufficient. The three counts on the three separate...