Birmingham Paint & Roofing Co. v. Gillespie

• Decision Date: 18 November 1909
• Citation: 163 Ala. 408,50 So. 1032
• Parties: BIRMINGHAM PAINT & ROOFING CO. v. GILLESPIE.
• Court: Alabama Supreme Court

50 So. 1032

163 Ala. 408

BIRMINGHAM PAINT & ROOFING CO. v. GILLESPIE.

Supreme Court of Alabama

November 18, 1909

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by the Birmingham Paint & Roofing Company against J. F Gillespie. From a judgment for defendant, plaintiff appeals. Affirmed.

The following pleas were filed: (3) "Defendant says that the mortgage on which this suit is brought, referred to in the complaint, was executed to guarantee the delivery of one car load of graphite by George R. Wainwright, J. D. Tyson, and defendant to the plaintiff, and after the mortgage was given the plaintiff countermanded the order and refused to accept the graphite before the time limit of said guaranty." (4) "The defendant says there is an entire failure of consideration to the mortgage on which the suit is brought and which is referred to in said complaint." (6) "That plaintiff bought from the defendant and George R Wainwright and J. D. Tyson the car load of graphite at and for the sum of $20 per ton, and paid thereon the sum of $160 said graphite to be delivered to plaintiff in 60 days, and that in performance of said contract the defendant, acting in copartnership with said Wainwright and Tyson, undertook to get out said graphite, and did get out a large part thereof, placed machinery in the mines, and expended the said sum of $150 and more in the pursuance of said contract in good faith; but plaintiff, not regarding said contract, countermanded said contract and order, and refused to pay for said graphite before the time for shipping same expired, and notified defendant that he would not take the graphite. And defendant avers that the note given by said Wainwright, Tyson, and defendant for $150, secured by the mortgage sued on in this case, was given and intended to guarantee the prompt delivery of said graphite within the time agreed upon. And defendant avers that by refusing to accept such graphite and by countermanding said order plaintiff waived the conditions of said mortgage and rendered the same nugatory."

Bush & Bush, for appellant.

J. F. Gillespie, for appellee.

SIMPSON J.

This action of detinue was brought by the appellant against the appellee. The action is based upon a mortgage of personal property. The defense set up by pleas is that the mortgage was given to guarantee the delivery of a car load of graphite which had been sold by the defendant, Wainwright, and Tyson, which they had been and are ready to deliver, but that the plaintiff countermanded the order for the same, and refused to accept the same, before the limit of the guaranty. There was no error in the refusal to strike pleas 3 and 4 to the complaint. Section 3791 of Code of 1907 authorizes any defense which might be made to the debt, if sued on, except the statute of limitation. McDaniel v. Sullivan & Bramlett, 144 Ala. 583, 39 So. 355; Hooper & Nolen v. Birchfield et al., 115 Ala. 227, 22 So. 68.

There was no error in overruling the demurrer to the third and sixth pleas. The mortgage in this case was executed alone by Gillespie, and he alone is sued in this case, and the fact that it was given to secure the performance of a contract by himself and his partners does not change the personal liability of the defendant, nor his right to show any fact tending to prove...