Bozeman v. J.B. Colt Co.

• Decision Date: 14 November 1923
• Docket Number: 3 Div. 423.
• Citation: 19 Ala.App. 126,95 So. 588
• Parties: BOZEMAN v. J. B. COLT CO.
• Court: Alabama Court of Appeals

95 So. 588

19 Ala.App. 126

BOZEMAN v. J. B. COLT CO.

3 Div. 423.

Court of Appeals of Alabama

November 14, 1923

Rehearing Denied March 6, 1923.

Appeal from Circuit Court, Escambia County; John D. Leigh, Judge.

Action by J. B. Colt Company against J. E. Bozeman. From judgment for plaintiff, defendant appeals. Affirmed.

Leon G Brooks, of Brewton, for appellant.

Hamilton, Page & Caffey, of Evergreen, for appellee.

MERRITT J.

The action is one of assumpsit for goods sold and delivered by the plaintiff to the defendant.

Under the general issue any proof therefore, showing that there was no sale of the goods by the plaintiff to the defendant is admissible. Shepherd v. Butcher Tool & Hdw. Co., 198 Ala. 275, 73 So. 498; La. Lumber Co. v. Farrior, 9 Ala App. 383, 63 So. 788; Shannon & Co. v. McElroy, 3 Ala. App. 519, 57 So. 118.

If the defendant gave the plaintiff an order for goods to be shipped not less than six months after the order was given, and with a reservation of the right to cancel said order during this time, and did in fact cancel the same within the period, then a shipment of the goods by the plaintiff to the defendant would not amount to a sale, and the defendant could show such facts under a plea of non debitatus. Likewise, if the vendor's agent made such false representations as to the defendant's right to countermand the order within six months as would be binding upon the principal, and the defendant did in fact give a countermand within six months there would be no obligation on the part of the defendant to pay for goods shipped in disregard of the withdrawal of the offer.

Such facts would show that there was never an offer and acceptance, but at most only a conditional offer which was withdrawn.

The demurrers to pleas 2 and 4 were properly sustained.

Plea 3 sets out the same facts as pleas 2 and 4, but alleges that the plaintiff through his agent mistakenly represented to the defendant that he might have six months within which to countermand the order for the goods. Under the statute, section 4298 of the Code, a mistaken representation is just as much a legal fraud, if the other essentials are proven, as intended misrepresentation. So that under plea 3, to which demurrers were overruled, the defendant could have made practically the same defense as was denied him under pleas 2 and 4, and the real question in the case is the action of the court in overruling defendant's demurrers to plaintiff's replication to this plea.

The replication alleges that the goods were shipped under a written order signed by the defendant, which was sufficient to put the defendant on notice that the agent had no authority to make promises inconsistent with the written order, for the order expressly stated that it became a binding contract upon acceptance by the plaintiff company; that it embodied all the terms of the agreement, and that it was not subject to modification or cancellation by any agent of the plaintiff company, but only by a written agreement between the purchaser and the plaintiff company, acting through one of its officers, and alleges that there was no agreement among the parties allowing the defendant to cancel the order. In the case of Fulton v. Sword Medicine Co., 145 Ala. 331, 40 So. 393, the Supreme Court, where the facts were very much like those alleged here, says:

"The order signed by defendant, when accepted by the plaintiff, constituted a contract, which the parties had reduced to writing, and the defendant could not contradict the same by parol testimony. While it is true that, where goods are sold by an agent, the general rule is that, if the principal 'seeks to avail himself of the benefits of the contract made by the agent, he is bound by the representations made by the agent' [citations], yet this does not contravene other recognized principles of law. 'The doctrine of apparent authority can be invoked only by one who has been misled to his detriment by the apparent authority of the agent' [citations]. And when a traveling

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