American Sales Book Co. v. S.H. Pope & Co.

• Decision Date: 14 January 1913
• Citation: 61 So. 45,7 Ala.App. 304
• Parties: AMERICAN SALES BOOK CO. v. S.H. POPE & CO.
• Court: Alabama Court of Appeals

61 So. 45

7 Ala.App. 304

AMERICAN SALES BOOK CO. v. S.H. POPE & CO.

Court of Appeals of Alabama

January 14, 1913

Appeal from Circuit Court, Coosa County; S.L. Brewer, Judge.

Assumpsit by the American Sales Book Company against S.H. Pope and R.O Richards, individually, and as partners. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

The first count claims for balance due on goods, wares, and merchandise sold. The second count claims for balance due for certain goods sold, naming them specifically. The third count claims on a special contract which is made an exhibit to the complaint, which is in the nature of an order to the plaintiff from the defendant to ship certain goods mentioned therein, agreeing to pay $100, $5 upon delivery, and the balance in six equal monthly payments or 5 per cent. cash 10 days. It is agreed that, should there be a failure to pay any drafts or execute notes for deferred payment, the full amount should at once become due and payable, anything in the notes to the contrary notwithstanding, and, in default of any payment, that the goods might be removed, and the amount paid thereon be taken and deemed to be payments for the use of the goods therein specified. The pleas 1 and 2 were the general issue. (3) "No consideration, in that the goods were entirely worthless, and of no value, and that the said goods constitute the sole and only consideration for the contract." (4) "Failure to mail an acceptance of said contract as provided in said contract, by the plaintiff." (5) "That the sole consideration for the demands sued on is the purchase price of the goods mentioned in the contract, and that under the contract the title to said goods remained in the plaintiff until fully paid for, and the defendant says that it delivered back to the plaintiff all the goods therein mentioned and that plaintiff accepted the same." (6) Same as 5. (7) "The sole consideration for the demand sued on was the articles mentioned in the contract, and that said contract was not proved in writing by the plaintiff, and was not accepted and acknowledged and mailed from the factory as provided by the terms of the contract." (8) "Alleges representations made by the agent of the plaintiff that the goods were useful and valuable instruments to be used in defendant's mercantile business, and that the contract was made on the face of said representation, and that the goods were not suitable for the purpose for which they were purchased, said purpose being known to the plaintiff at the time said contract was made, and that said representations were false, etc., of which fact defendant was not aware at the time of signing the contract." (9) Fraud based on the same facts as set out in plea 8.

The replications are: (1) "That defendant received the goods shipped under the contract without having received an acknowledgment and acceptance of the same in writing, and thereby waived plaintiff's written acceptance." (4) "Answering pleas 8 and 9: (1) That defendant had knowledge of the facts at the time of the execution of the contract, as shown by the contract, that plaintiff's salesman had no authority to make any agreement, verbal or otherwise, except as written in said contract. (2) That plaintiff's salesman had no authority to make any of the alleged false or fraudulent representations to the defendant to secure their contract for the goods purchased by defendant, and that plaintiff is not bound by same when such was made."

Charge 4 was refused to the plaintiff, and is as follows: "I charge you that, if you believe to your reasonable satisfaction from the testimony that the defendants received the goods sold them by plaintiff, then defendants waived notice of acceptance of their contract by plaintiff in writing as set out in the contract."

John A Darden, of Goodwater, for appellant.

Riddle, Ellis, Riddle & Pruett, of Goodwater for appellees.

PELHAM J.

The appellee, defendant below, filed pleas numbered from 1 to 9 inclusive, to the plaintiff's complaint, claiming on account and special contract in its different courts. The plaintiff filed demurrers to pleas 2, 3, 4, 5, 6, 7, 8, and 9, and the judgment entry set out in the record shows that the court sustained demurrers to pleas 2, 5, 6, 8, and 9, "and overruled as to all other pleas." The judgment entry further shows that the defendant by leave of the court amended pleas 5, 6, 8, and 9 by filing separate paper writing setting out the amendments, and that the plaintiff refiled all demurrers theretofore filed to the original pleas to these pleas as amended, and the demurrers so filed to amended pleas 5, 6, 8, and 9, were overruled, and a judgment of the court is shown to that effect. It will be observed, however, that under the rulings of the Supreme Court the judgment entry does not show a sufficient judgment on the demurrers to pleas 3, 4, and 7 to support the...