Behrman v. Newton

• Decision Date: 12 June 1894
• Citation: 15 So. 838,103 Ala. 525
• Parties: BEHRMAN ET AL. v. NEWTON.
• Court: Alabama Supreme Court

15 So. 838

103 Ala. 525

BEHRMAN ET AL. v. NEWTON.

Supreme Court of Alabama

June 12, 1894

Appeal from circuit court, Henry county; J. M. Carmichael, Judge.

Action by Behrman & Winters against W. F. Newton for breach of contract of sale. Judgment was rendered for defendant, and plaintiffs appeal. Reversed.

The goods were in Dothan at the time of sale. Upon the cross-examination of the plaintiffs, they were asked "if they had insurance on the goods." The plaintiffs objected to this question, on the ground that it called for irrelevant and immaterial evidence, and duly excepted to the court overruling their objection. The defendant offered as a witness one Crawford, who, among other things, testified that the plaintiff Behrman had said to him that he could purchase nice, new, clean goods for the price he was selling the goods in question to the defendant, and that the plaintiffs had made $3,000 out of the said goods. The plaintiffs moved to exclude this testimony from the jury, because it was hearsay irrelevant, and illegal. The court overruled the objection and the plaintiffs duly excepted. Upon the introduction of all the evidence, the court, at the request of the defendant gave to the jury the following written charges: (1) "Fraud vitiates or annuls every contract into which it enters; and if the jury believe that there was any fraud practiced, or attempted to be practiced, by plaintiffs, or either of them, upon defendant, then, so far as the defendant is concerned, this alleged contract of sale and purchased was a void contract, and plaintiffs cannot recover." (4) "The plaintiffs must satisfy the jury, by a preponderance of the evidence, that the contract relied upon by them is the true contract, and, unless this is done, the defendant is entitled to a judgment at their hands." (6) "The fact, if it be a fact, that the plaintiff Behrman did not contradict the testimony of the witness Crawford relative to the conversation between them as to the price and condition of the goods, nor attempt to contradict him, is a circumstance at which the jury may look, in connection with all the other evidence in the case, in determining whether or not Crawford spoke the truth in those matters about which he testified." (7) "If the jury believe, from the evidence in this case, that the plaintiffs intentionally marked some of the goods embraced in the terms of the sale at a price higher than they cost laid down in Dothan, and that when the inventory was being taken by plaintiffs and the defendant, the plaintiffs intentionally concealed this fact from the defendant, then this was a fraud attempted to be practiced upon the defendant, and your verdict will be for the defendant." (8) "If the jury believe, from the evidence, that the plaintiffs intentionally altered or raised the cost mark of the goods, the subject of this controversy, above the actual cost of the same, then this was a fraud upon the defendant which authorized him to retire from the contract, and if a part of the goods only were so marked by the plaintiffs, then the defendant had a right to refuse to take said goods, and, in such event, the plaintiffs cannot complain that defendant has damaged them." The plaintiffs reserved a separate exception to the giving of each of these charges.

T. M. Espy and R. H. Walker, for appellants.

A. E. Pace, for appellee.

COLEMAN J.

This was an action brought to recover damages for the breach of an agreement, entered into between the plaintiffs and defendant, for the sale of a certain stock of goods, the purchase price being fixed at a certain per cent. on the cost mark of the goods. The breach averred is that defendant refused to accept the goods according to contract. The defendant pleaded, in short, by consent, (1) the general issue; (2) recoupment. There were no other pleas, and issue was joined upon these pleas. No facts are admissible in evidence which are not directed to the support of the facts averred in the complaint and in the pleas, and no instructions should be given which are not applicable to the issues before the jury. In actions ex contractu, except it be otherwise provided, the general issue is an averment that the allegations of the complaint are untrue, and puts in issue only the truth of such allegations; and, if the defendant does not rely solely on a denial of the plaintiffs' cause of action, he must plead specially the matter of defense. Code, § 2675. Under the plea of recoupment, damages may be recovered by the defendant, which grow out of, or are connected with, as a part of, the matters set forth in the plaintiffs' complaint, and in breach of the contract upon which suit is founded, or in violation of a duty imposed by the contract. Ewing v. Shaw, 83 Ala. 333, 3 So. 692; Martin v. Brown, 75 Ala. 422; Hatchett v. Gibson, 13 Ala. 593.

...