Carter v. Fischer

• Decision Date: 19 April 1900
• Citation: 127 Ala. 52,28 So. 376
• Parties: CARTER v. FISCHER.
• Court: Alabama Supreme Court

28 So. 376

127 Ala. 52

CARTER v. FISCHER.

Supreme Court of Alabama

April 19, 1900

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action by Maggie Fischer against Cecil Carter on an open account. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was brought by the appellee against the appellant on October 1, 1898. The complaint contained three counts. The first was a common count, claiming $131.20 due from defendant by account on June 27, 1898; the second was on an account stated on June 27, 1898; and the third was for goods, wares and merchandise sold by the plaintiff to the defendant on June 27, 1898. In the title to the goods the plaintiff was described as "M. Fischer." The defendant pleaded in abatement that the plaintiff's name was "Maggie," and not "M." Thereupon the plaintiff confessed the plea in abatement, and it was ordered that the complaint be allowed to be amended by making the name of the plaintiff, "Maggie Fischer." The record does not show that there was any actual amendment of the complaint, but the defendant proceeded without objection to file his pleas in bar, which, as originally filed, were five in number. The first and second pleas were the general issue. By the third plea, as an answer to each count of the complaint separately, "and as to each item of the stated account which occurred prior to February 18, 1898, the defendant alleged that the plaintiff was then a married woman living with her husband. The fourth and fifth pleas set up respectively, the statute of limitations of three and six years. To the third plea the defendant demurred upon the ground that the defense of coverture was a personal defense which could only be interposed by a married woman or her personal representative, and that the defendant was estopped from setting up coverture as a defense to the action. To the fourth plea, as an answer to the second and third counts of the complaint, the plaintiff demurred upon the ground that the cause of action stated therein was not barred by the statute of limitations of three years. These demurrers were sustained. Thereupon the defendant filed additional pleas numbered 6, 7, 8, and 9, in each of which he set up the statute of limitations of three and six years. The defendant also filed the following special pleas: "(10) For further plea in this behalf to each count of the complaint, separately, and as to each item of said counts separately as accrued before February 18, 1898, the defendant says that the plaintiff was then a married woman and living with her husband, and that the said plaintiff at the time carried on the business of a grocer and liquor dealer, and dealer in all kinds of feed, in the city of Mobile and state of Alabama, and that the said husband took part in the management of said business. And the defendant further says that each of the said items composing said account which accrued before February 18, 1898, was for groceries, liquors, and other property forming part of the stock in trade of said business, and was sold by the plaintiff in the usual course of business. (11) For further plea in this behalf to each count of the complaint, separately, and as to each item of each of the said counts, separately, as accrued before February 18, 1898, the defendant says that the plaintiff was then a married woman and living with her husband, and that the said plaintiff at the time carried on the business of a grocer and liquor dealer, and dealer in all kinds of feed, in the city of Mobile and state of Alabama, and that her husband took part in the management of said business. And defendant further says that each of the said items composing said account, and which accrued before February 18, 1898, were for groceries, liquors, and other property forming part of the stock in trade of said business, and were sold by plaintiff in the usual course of business; and defendant says that at the time plaintiff was so carrying on said business, before February 18, 1898, the consent of the husband was not expressed in writing, and was not filed and recorded in the office of the probate judge of Mobile county; and the defendant says, further, that the legal title to each of the items of property was vested in the husband of plaintiff, as her trustee, and not in the plaintiff. And defendant further says, as to the sale of each of said items, the sale at law was not that of the plaintiff, but that the sales were sales of the husband of the plaintiff, and that the legal right to demand payment for the same is in said husband, as plaintiff's trustee, and not in the plaintiff." The defendant demurred to the tenth special plea upon the following grounds: (1) The defense of coverture is a personal defense, which can be interposed only by a married woman or her personal representative, and that the defendant was estopped from setting up her coverture as a defense to this action; (2) that it fails to allege that the plaintiff did not have the assent and concurrence of her husband, expressed in writing, in making the contract sued on, and did not, with the consent of the husband, expressed in writing, and filed in the office of the judge of probate, enter into and pursue the business set out in said plea. The plaintiff moved the court to strike the eleventh plea because it contained no defensive matter, in that, in a suit by a married woman on a contract entered into with her, the other party thereto is estopped from setting up her coverture as a defense to such action. The court sustained the demurrer to the tenth, and the motion to strike the eleventh, plea.

On the trial of the cause the plaintiff introduced evidence tending to show that she was a married woman during all the time the items sued upon accrued; that her place of business was in Mobile, and that she conducted a retail grocery, with a barroom connected therewith; that the barroom was managed by her husband as her agent; and that the licenses for running the liquor business had been paid for the years 1897 and 1898, and were in the name of her husband. The plaintiff's husband, as a witness, testified that the account sued on was for goods sold by the plaintiff to one McGilvray; that the goods were so sold and delivered to said McGilvray on the credit of the defendant; that the defendant told plaintiff's husband to let McGilvray have the goods and to charge them to him; that no agreement or contract between the plaintiff and the defendant had been reduced to writing, but that upon the request of the defendant the items were sold to McGilvray and charged to the defendant. The plaintiff's husband further testified that they commenced to let McGilvray have the goods, under such an arrangement with the defendant, during the month of September, 1897; that from that time up to January 1, 1898, his account amounted to $68; that the plaintiff refused to sell more goods to McGilvray until a payment was made on the account; that upon the presentation of the account to the defendant he paid to the plaintiff $50, by a check on the People's Bank of Mobile; that this payment was credited on the account against the defendant. And this witness further testified that about the 1st of February, 1898, the defendant again told the plaintiff's husband to let McGilvray have the goods and merchandise, and that he would pay for them on July 1st; that subsequent to that time the defendant sent several orders to the plaintiff's place of business, with his name signed to them, which orders requested that the plaintiff would let the bearer, who was McGilvray, have certain quantities of goods; that these orders were destroyed; and that the last item purchased by McGilvray was in June, 1898; and that the amount of the bill at that time was $141.80, after allowing the credit of $50 paid by the defendant. Upon the cross-examination of this witness, he testified that Fields, who was a partner of the defendant in the pickery business, came to him in April or May and asked him for the repayment of the $50 evidenced by the check sent by the defendant in January, but that he told him that he was unable to repay the defendant, "because his money was tied up in logs, and also that he had given the defendant credit for this in his account." The plaintiff introduced further evidence tending to show that, when the defendant came to the plaintiff's husband and asked for the $50 back, he was told that he had been given credit therefor on his account due the plaintiff. The plaintiff offered in evidence an itemized account sued on. This account was made out against "Mr. C. Carter," and it contained many items for groceries and other goods sold, and also included charges for whisky, the items of which ranged from 5 cents to $2. The account showed that there was due the plaintiff $131.80. The defendant...