Carolina Portland Cement Co. v. Alabama Const. Co.

• Decision Date: 30 June 1909
• Citation: 162 Ala. 380,50 So. 332
• Parties: CAROLINA PORTLAND CEMENT CO. v. ALABAMA CONST. CO.
• Court: Alabama Supreme Court

50 So. 332

162 Ala. 380

CAROLINA PORTLAND CEMENT CO. v. ALABAMA CONST. CO.

Supreme Court of Alabama

June 30, 1909

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by the Carolina Portland Cement Company against the Alabama Construction Company. Judgment for defendant, and plaintiff appeals. Affirmed.

James T. Greene, for appellant.

Blackwell & Agee, for appellee.

MAYFIELD J.

The case made on appeal is substantially as follows: The appellant was the plaintiff in the court below, and brought an action against the defendant for $198.15, alleged to be due by account. The defendant filed pleas 1, 2, and 3, and thereupon demurrers were interposed to pleas 2 and 3, and the same were sustained. The first plea was the plea of the general issue. After the court had sustained the demurrers to said pleas 2 and 3, the defendant filed additional pleas A and B. Thereupon the plaintiff demurred to said pleas A and B, which demurrers the court overruled, and such rulings of the court are assigned as error.

The account sued upon was for a car load of cement, contracted to be sold on the 9th day of February, 1906, by the plaintiff to the defendant. Pleas A and B were pleas of recoupment. Said plea A alleged, in short, that plaintiff agreed to ship said car load of cement without delay from Atlanta, Ga., to defendant at Roanoke, Ala.; that if plaintiff had complied with its contract to ship the cement from Atlanta, Ga without delay, it would have reached Roanoke within six days after the 9th day of February, 1906, but that shipment was not made without delay from Atlanta, Ga.; that by reason of the plaintiff's not so shipping it the defendant was injured, in that its work in the construction of a line of railroad could not be finished until after the construction by it of a culvert on said line of railroad for which said cement was ordered; and that because of the failure of the plaintiff to ship the same from Atlanta, Ga., in accordance with its contract, defendant's contractor's outfit of 65 mules, etc., were kept idle for 10 days, waiting for the cement, to defendant's loss in the sum of $120 per day. Plea B varied the statement to the extent that it did not allege that it was to be immediately shipped from Atlanta Ga., but that immediate shipment was to be made, and that instead of immediate shipment being made in accordance with plaintiff's contract, the shipment was not made until the 9th day of March, and by reason of the delay in shipment until the 9th day of March delivery was not made until the 9th day of April. It was further alleged that, if immediate shipment had been made in accordance with the contract, the cement would have been delivered to defendant at Roanoke on, to wit, the 20th day of February, 1906; that the cement was to be used in the construction of a stone culvert on the line of a railroad which the defendant was building as a contractor, and by reason of the delay in the shipment of the cement to defendant there was a delay in the delivery of the same; that defendant could not complete its contract within the time in which it would otherwise have been able to do, and defendant's teams and railroad contractor's outfit were lying idle for 10 days, awaiting the completion of the work for which said cement was to be used; and that, if the cement had been shipped within a reasonable time under the order to the plaintiff, defendant's work would have been completed 10 days before it was completed, and the defendant offers to recoup the damages caused by the plaintiff's delay in the shipment of the cement to defendant at Roanoke in accordance with its contract.

There were a great number of grounds of demurrer assigned. The demurrers to each plea were overruled, generally, without specifying as to action upon the various grounds. But few of these grounds are insisted upon in argument, and we will, of course, respond only to those so insisted upon. It is insisted (1) that the pleas should have averred defendant's inability to procure the cement elsewhere, and thereby lessened the damages to the plaintiff; (2) that plea B shows that the shipment was made on the 9th day of March, and that delivery was made on the 9th day of April, thereby showing that the alleged idleness and loss of time by defendant's teams was caused by the delay in the delivery, and not by the delay in shipment, and that whatever damage suffered was by delay in delivery and not of shipment. Appellant and appellee coincide that the law and rules as to the measure and as to the admeasurement of damages for the breach of this contract of sale of chattels which are applicable to and must govern in this case are correctly announced in the cases of Watson v. Kirby, 112 Ala. 436, 20 So. 634, McFadden v. Henderson, 128 Ala. 221, 29 So. 640, Chemical Co. v. Geiss, 143 Ala. 591, 39 So. 255, and So. Ry. v. Coleman, 153 Ala. 266, 44 So. 837. Therefore the only disputed question is one of pleading.

A plea of set-off or recoupment is not demurrable, merely because it seeks to set off or recoup some damages which are not allowable, if it states a good cause of action as to other damages. Such pleas should be purged of such damages by motions to strike, by objections and exceptions to the evidence, and by charges so as to eliminate such improper claims. Pleas of set-off and recoupment are in effect complaints and declarations of the defendant against the plaintiff, and they must therefore in a large measure be treated, tested, and cured by the same rules and means as complaints. Recoupment, however, does not confess the action sued on by plaintiff, as does the plea of set-off. It denies the right of plaintiff to recover as or to the amount claimed. It asserts that the...