Baker v. Britt-Carson Shoe Co.

• Decision Date: 07 November 1914
• Docket Number: 538
• Citation: 188 Ala. 225,66 So. 475
• Court: Alabama Supreme Court
• Parties: BAKER v. BRITT-CARSON SHOE CO.

66 So. 475

188 Ala. 225

BAKER v. BRITT-CARSON SHOE CO.

No. 538

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Coosa County; A.H. Alston, Judge.

Action by the Britt-Carson Shoe Company against D.W. Baker. From a judgment for plaintiff, defendant appeals. Affirmed.

Riddle Ellis & Riddle, of Goodwater, and Riddle & Burt, of Talladega, for appellant.

John A Darden, of Goodwater, for appellee.

MAYFIELD J.

Appellee sued appellant in a justice court, and there obtained a judgment. Appellant appealed to the circuit court, where the case was tried de novo. The circuit judge directed a verdict for the plaintiff, and judgment was rendered thereon, from which judgment this appeal is prosecuted.

The action in the justice court was in assumpsit, claiming on the common counts: (1) for balance due for goods sold and delivered; (2) on account; (3) for interest due on accounts (4) for interest due on accounts, with the facts and the dates; (5) for error as to an invoice of goods sold. Demurrers were properly overruled as to each count. The counts were each good, if the action had been originally brought in the circuit court, and of course were sufficient in a justice court, where no particularity is required as to pleadings.

The defendant filed nine pleas, the last seven of which were special. The circuit court on motion struck all the pleas except plea 1, the general issue, and special plea 4. If there was any error as to this ruling, it was as to pleas 2, 3, 5, and 6; and as to these it clearly appears to have been without possible injury. Pleas 7, 8, and 9 were frivolous, and were properly stricken. Plea 4 was but another way of raising the general issue, which plea 1 raised. Pleas 2, 3, 5, and 6 attempted to set up the same defense as that set up in plea 4. Plea 4 was as follows:

"That the said account is for interest on an open account between the plaintiff and the defendant, during the years 1907, 1908, and 1909, and at various and sundry times during said years the plaintiff and defendant had settlements, and the defendant paid the plaintiff in full of his said account with the plaintiff, and that not until this defendant had paid the plaintiff in full of what the said defendant was indebted to the plaintiff did the plaintiff make known to the defendant that there was any interest due by this defendant, which notice was given to the defendant long after this defendant had paid the plaintiff in full of his account with the plaintiff, and which notice was given this defendant on or about the 12th day of October, 1909."

The plaintiff, on the trial, added counts A, B, and C. They were not different in any respect from the original counts, and, being practically in Code form, were sufficient. The evidence did not prove plea 4 as claimed by appellant, and he was not entitled to the general affirmative charge as to this plea.

There was no error in overruling defendant's objection to the question to the witness Britt as to whether he had a statement of all the items introduced in evidence when he went over the account with the defendant, nor in declining to exclude the answer thereto that the witness brought the statement when he came. This was not an attempt to...