Comer v. Way

• Decision Date: 31 July 1895
• Citation: 19 So. 966,107 Ala. 300
• Parties: COMER ET AL. v. WAY ET AL.[1]
• Court: Alabama Supreme Court

19 So. 966

107 Ala. 300

COMER ET AL. v. WAY ET AL.^[1]

Supreme Court of Alabama

July 31, 1895

Appeal from circuit court, Barbour county; J. M. Carmichael, Judge.

Action by H. M. Comer & Co. against Way & Edmondson. There was a judgment for defendants, and plaintiffs appeal. Reversed.

The complaint contained two counts. In the first count the plaintiffs claim of the defendants $946.55, due by account stated on December 5, 1895, "which said account is verified by affidavit." In the second count, the plaintiffs claim the same amount as due for money paid by the plaintiffs for the defendants. The account sued on was verified by affidavit, and the plaintiffs at the time of bringing their suit, indorsed on the summons and complaint that the account was so verified. The defendants filed the following pleas: "(1) The general issue, in short by consent. (2) That defendants, residing and doing business in Eufaula, Ala., on or about December 1, 1892, shipped to plaintiffs, who were commission merchants and factors in Savannah, Ga., 200 bales of long staple cotton, and on or about the said time, the plaintiffs advanced to the defendants 9 1/2 cents per pound upon the same, and afterwards, to wit, on or about the 10th day of April, 1893 plaintiffs, contrary to the instructions of defendants, and without their knowledge or consent, shipped said 200 bales of cotton to Liverpool, England, and failed and refused for a long space of time thereafter, to wit, eight months, to inform defendants of such shipment, or to render any account of their acts in regard to the same, and defendants aver that by so doing, plaintiffs abandoned their right to claim or demand from defendants, personally, any amount, and elected to look to said cotton and their lien thereon, alone, for any advances made or liabilities incurred upon the same, and therefore they can not maintain this suit. (3) That defendants, residing and doing business in Eufaula, Ala., on or about December 1, 1892, shipped to plaintiffs, commission merchants and factors in Savannah, Ga., to be there sold, 200 bales of long staple cotton, and on or about said time plaintiffs made an advance to defendants upon the same; that afterwards, to wit, about the 10th day of April, 1893 plaintiffs, contrary to the instructions of defendants, and without their knowledge or consent, shipped said cotton to Liverpool, England; but at the time of said shipment said cotton was worth in Savannah, Ga., an amount greater than the sum advanced by plaintiffs to defendants, as aforesaid, and enough to cover the expenses incurred by plaintiffs upon the same, and defendants aver that by reason of said wrongful act, plaintiffs can not recover in this case. (4) That at the time plaintiffs brought this suit, they were indebted to defendants in the sum of $3,000 for damages arising out of the same transaction, upon which this suit was brought, and defendants hereby offer to recoup the same against the demands of the plaintiffs, and they claim judgment for the same." Issue was joined upon these pleas, there being no replications filed. Upon the trial of the case, as is shown by the bill of exceptions, the plaintiffs offered in evidence the itemized statement of the account between themselves and the defendants, verified by affidavit. The defendants objected to the introduction of this verified account, which objection the court sustained, and refused to allow the same to be introduced in evidence, and to this ruling the plaintiffs duly excepted. The other facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the plaintiffs requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury are reasonably satisfied from the evidence in the case that said 200 bales of cotton could not be sold at a fair price in Savannah, Ga., and that H. M Comer & Co., exercising a reasonable discretion in the matter of said cotton, shipped the same to Liverpool, and that said cotton was sold in Liverpool at 1 1/4 to 1 1/2 cents a pound more than it was worth at the time it was so shipped, and that said Way & Edmondson were notified fully of all the acts and doings in the sale of said cotton, and received full account sales of same and made no objections thereto within a reasonable time after receiving full information, then Way &amp Edmondson would be held in law to have ratified said sale and would be bound by the sale." (2) "If the jury are reasonably satisfied from the evidence in this case that on December 5, 1893, H. M. Comer & Co. furnished Way & Edmondson the account sales of the 200 bales of cotton, and that said account sales showed that said 200 bales of cotton had been sold in Liverpool, and that the net proceeds of same had been placed to the credit of Way & Edmondson, and that said Way & Edmondson made no objection to said sale of said cotton, and made no objection to the way in which the net proceeds of said cotton had been applied until several months thereafter, then the said action of said Way & Edmondson was a ratification of the acts of said H. M. Comer & Co., in the sale of said cotton and a ratification of the acts of said H. M. Comer & Co. in placing net proceeds of same to their credit." (3) "If the jury are reasonably satisfied from the evidence that on December 5, 1893, H. M. Comer & Co. fully informed Way & Edmondson of all the facts connected with the sale of said 200 bales cotton in Liverpool and furnished them with a full account sales of said cotton, showing when and where and at what price said cotton was sold, and that the proceeds of said sale had been credited to said Way & Edmondson, and that said Way & Edmondson retained said account sales for several months and made no objection to the same, nor to the way said cotton was disposed of, then in law this was a ratification of said sale by said Way & Edmondson and they are bound by the said sale." There were verdict and judgment for the defendants. The plaintiffs appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

G. L. Comer, for appellants.

A. H. Merrill and S. H. Dent, Jr., for appellees.

HARALSON J.

1. The account referred to in section 2773 of the Code, which may be verified by affidavit of a competent witness, taken in the manner and subject to the conditions therein prescribed, is we apprehend, an open and not a stated account. The fact that the verified account, should contain a statement of its items, would so indicate; and besides, to maintain an action on an account stated, the plaintiff must prove the fact of its statement; it must be proved as laid to authorize a recovery,-that and nothing else will support his allegation in the complaint. IF the plaintiff make that proof, he is entitled to judgment, otherwise not. As has been said, "an account stated is an account balanced and rendered, with an assent to the balance, express or implied; so that the demand is essentially the same as if a promissory note had been given for the balance." Loventhal v. Morris, 103 Ala. 336, 15 So. 672; Bass v. Bass, 8 Pick. 187. The affidavit authorized by the statute seems, therefore, to be inapplicable to a suit on an account stated, and there was no error in the ruling of the court so holding. McCamant v. Batsell, 59 Tex. 363. The defendants filed four pleas, upon which the plaintiffs took issue, without special replication to either. If either of these pleas was bad when tested on demurrer, or if its defenses might have been avoided by special replication, setting up other facts to that end, still, if without this, issue was taken on a defective or imperfect plea, instead of forcing an issue, in the manner indicated, on the real and meritorious facts, and the facts as set up in the plea were substantially proved,-the defendants having done or suffered nothing to waive their right to a replication,-the defendants were entitled to a judgment thereon, and the general charge if requested, might have been given on the plea. But, another well-recognized principle must not be overlooked,-that when a case is tried, as though upon an issue on which it is not triable, on the pleadings as set out, this court on review, will treat the case as though the proper issue had been made up, such as the course of trial indicates was proper to have been made, and that a failure to interpose the proper plea, was waived, as where there is no plea by defendant of contributory negligence, on the part of plaintiff in an action for alleged injuries to him by the defendant, and the parties proceed without such plea to trial of the case on the issue of contributory negligence, as though pleaded, the fact that such a plea was not interposed will be deemed to have been waived. Railroad Co. v. Farmer, 97 Ala. 141, 12 So. 86; Railroad Co. v. Burton, 97 Ala. 240, 12 So. 88; Andrews v. Railroad Co., ...