Birmingham Motor Co. v. Norwood Transp. Co.

• Decision Date: 12 November 1918
• Docket Number: 6 Div. 389
• Citation: 80 So. 146,16 Ala.App. 572
• Parties: BIRMINGHAM MOTOR CO. v. NORWOOD TRANSP. CO.
• Court: Alabama Court of Appeals

80 So. 146

16 Ala.App. 572

BIRMINGHAM MOTOR CO. v. NORWOOD TRANSP. CO.

6 Div. 389

Court of Appeals of Alabama

November 12, 1918

Appeal from City Court of Birmingham; C.B. Smith, Judge.

Action of assumpsit by the Birmingham Motor Company against the Norwood Transportation Company, a corporation. From judgment for defendant, plaintiff appeals. Affirmed.

The action was upon the common count. The third plea is as follows:

Now comes the Norwood Transportation Company, the defendant in the above-entitled cause, and for further answer to the complaint, and each count thereof separately and severally says that the goods, merchandise, chattels, or work and labor for which this suit is brought was furnished by plaintiff to defendant for the purpose of replacing material and workmanship had been furnished under an agreement made by and between the Birmingham Realty Company, a body corporate, and the Birmingham Motor Company, plaintiff, by which said agreement plaintiff in this cause had sold to the Birmingham Realty Company said material and workmanship and guaranteed said material and workmanship to run a distance of thirty thousand (30,000) miles, and which said material therefor furnished had worn out before running 30,000 miles. All rights of the Birmingham Realty Company under said contract had been, before this material sued for was purchased transferred to this defendant Norwood Transportation Company by the Birmingham Realty Company, and defendant says that the goods and labor sued for in this case was furnished for and on behalf of plaintiff, and under its guaranty, in the contract above mentioned.

J.L Drennen, of Birmingham, for appellant.

London, Yancey & Brower, of Birmingham, for appellee.

BROWN P.J.

The clerk in transcribing the fourth plea in the record failed to incorporate the copy of the contract attached as a part of the plea, and, with this omitted, we are not able to intelligently review the ruling of the court on the demurrers to this plea. The third plea was not subject to the grounds of demurrer assigned. The evidence tends to show that the agreement referred to in defendant's special pleas becomes an asset of the appellee from the date of its organization, the appellee having been organized by persons interested in the Birmingham Realty Company, and the opinion prevails that it had such interest in the agreement as authorized it to plead the guaranties therein embraced as a defense to this action.

It appears without dispute that the Birmingham Realty Company purchased from the appellant, plaintiff in the court below four Pierce-Arrow two-ton chassis, for which it paid $3,000 each, to be used in the operation of a bus line between Norwood and Birmingham, and for the purpose of carrying out this enterprise the...