Boyett v. Standard Chemical & Oil Co.

• Decision Date: 10 April 1906
• Citation: 41 So. 756,146 Ala. 554
• Parties: BOYETT v. STANDARD CHEMICAL & OIL CO.
• Court: Alabama Supreme Court

41 So. 756

146 Ala. 554

BOYETT v. STANDARD CHEMICAL & OIL CO.

Supreme Court of Alabama

April 10, 1906

Rehearing Denied June 30, 1906.

Appeal from Circuit Court, Covington County; H. A. Pearce, Judge.

"To be officially reported."

Action by the Standard Chemical & Oil Company against I. E. Boyett. From a judgment for plaintiff, defendant appeals. Reversed.

This was an action begun by attachment at the instance of appellee on certain notes executed by appellant to appellee recovering the sales of fertilizer. The complaint contained several counts declaring on the notes and other counts on the common counts. The defendants answered by pleas as follows: (1) The general issue; (2) not indebted; (3) want of consideration (4) failure to procure license from the commissioner of agriculture to do business as a fertilizer dealer; (5, 6, 7 8) were no tags; (9, 10) that the fertilizers manufactured by plaintiff were not guarantied and a written or printed statement setting forth the ingredients filed with the commissioner of agriculture. To the common counts, the defendant pleaded payment of the same by the execution of the note sued on in the other count. The other facts necessary to an understanding of the opinion appear therein.

Sollie & Kirkland, Steiner, Crum & Weil, Stallings & Reid, and Whaley & Prestwood, for appellant.

A. A Wiley, Powell, Albritton & Albritton, and Henry Opp, for appellee.

SIMPSON J.

This was an action commenced by attachment on promissory notes given for commercial fertilizers. Common counts were afterwards added, and various questions and exceptions raised thereon, and finally the general charge was given in favor of plaintiff on the counts based on the notes, and judgment rendered for plaintiff (appellee).

A motion is made by appellee to strike the bill of exceptions for failure to comply with rule 33, subd. 5, circuit court (Code 1896, p. 1201). While there are some portions of the testimony which might have been shortened, yet the greater part of that to which attention has been called as having been unnecessarily set out in extenso relates to tagging of the fertilizer, which was a material point in the case, and from the fact that the witnesses testified separately to separate and several portions of the goods taken out of the cars at different times, from all of which items of testimony the jury would have to make up its verdict, it could not well have been condensed into a general statement, and, even as to the testimony in regard to the shipment of the goods, although the defendant admitted receiving the goods, yet this might have been important in identifying the goods in regard to which each witness testified by reference to the cars and brands of the fertilizers. We cannot say that this was such a flagrant violation of the rule as to justify the striking of the bill of exceptions. As the court gave the general charge in favor of the plaintiff as to the several counts based on the notes, and the verdict of the jury shows that they found for the plaintiff, on those counts alone, all rulings on the common counts or on objections to their being joined in the same complaint, with the counts on the notes, if error at all, was without injury to the appellant.

The plaintiff contends that the court was authorized to give the general charge in favor of the plaintiff, on the counts based on the notes, because the defendant was estopped by his pleading from denying the validity of the notes; the defendant having interposed pleas to the common counts setting up payment of the demands sued on, by the execution of the notes, and, under the rulings of ...