Cousins v. Harrison, 6 Div. 360.
| Decision Date | 25 February 1947 |
| Docket Number | 6 Div. 360. |
| Citation | 33 Ala.App. 37,30 So.2d 393 |
| Parties | COUSINS v. HARRISON. |
| Court | Alabama Court of Appeals |
Rehearing Denied March 18, 1947.
Ben F. Ray, of Birmingham, and Upshaw G. Jones of Wetumpka, for appellant.
Horace C. Wilkinson, of Birmingham, for appellee.
Defendant's pleas in abatement are as follows:
'1. That each of said defendants has a permanent residence in the State of Alabama, which said permanent residence is Elmore County, Alabama, and that neither of said defendants resides in Jefferson County, Alabama.
'2. For further plea in abatement each of said defendants say that the action relied upon by the plaintiff in this suit is a personal action against each of the defendants; that each of said defendants has a permanent residence in the State of Alabama,
which said permanent residence is Elmore County, Alabama; and that the act or omission complained of in the original complaint was not done in Jefferson County, Alabama, or did not occur in Jefferson County, Alabama.'
This is an appeal from a judgment recovered by the plaintiff in the circuit court of Jefferson County, Alabama, against the defendant, for the sum of $261.18, for injury and damage alleged to have been sustained as a result of deceit in the sale of five cows. The appeal was submitted in this court on December 17, 1946.
On November 13, 1942, appellee filed a complaint in Code form alleging that the defendant represented to the plaintiff that four of said cows were giving 13 1/2 gallons of milk per day and that the fifth cow had given three gallons with her first calf and would exceed that with the second calf which was to be dropped about October 4, which it is alleged the defendant knew at the time of the sale was untrue.
The defendant filed two sworn pleas in abatement, which will be set out by the Reporter.
These pleas were filed on December 2, 1942. Near the bottom of the pleas was the following language: This was filed on December 2, 1942.
A demurrer was sustained to the plea in abatement on the 28th of March, 1944, and on the 30th day of March, 1944 the defendant filed a demurrer to the complaint, which was overruled and at that time defendant demanded 'a trial by jury when this cause comes on to be heard in the circuit court of Jefferson County, Alabama.'
On the 18th day of June, 1946 when the case was called for trial, the plaintiff objected to the case being tried by a jury and moves the court to try the case without a jury. Objection was sustained and the motion granted.
The plea was in short by consent and on hearing the evidence the court rendered a verdict in favor of plaintiff and against defendant.
There are four assignments of error; the ruling on the demurrer to the plea in abatement, the ruling denying the trial by jury, the ruling overruling the amended demurrer to the complaint as last amended, and the overruling the motion for a new trial.
With respect to the plea in abatement number 1, it is only necessary to point out that the action was in tort and that the defendant did not negative the fact that the act complained of occurred in Jefferson County, Alabama, where the suit was filed. The matter relied on in plea in abatement number 1, is that the defendant was a permanent resident of Elmore County, Alabama.
With respect to plea in abatement number 2, it is averred that the act or omission complained of in the original complaint was not done in Jefferson County, Alabama, or did not occur in Jefferson County, Alabama, but the undisputed evidence does not sustain that averment. It appears that an offer was made over the telephone to the plaintiff in Birmingham, Alabama, to sell him the cows, and that offer was accepted in Birmingham, Alabama.'
'Where a contract is made by telephone, it is regarded as made at the place from which the accepting party speaks.' 13 C.J. Sec. 581, Note 2; 17 C.J.S. Contracts, § 356; Cardon v. Hampton, 21 Ala.App. 438, 109 So. 176.
It is of course well settled that a tort for fraud and an action for deceit is properly brought where the fraud was committed. Williams v. Hyde, 10 Ala.App. 566, 65 So. 708; Wooddy v. Berry, 190 Ala. 308, 67 So. 450; State Building & Loan Association v. Bradwell, 227 Ala. 606, 151 So. 689.
The sustaining of a demurrer to a plea is never error where the evidence clearly shows that the plea could not have been established. Carter v. Odom, 121 Ala. 162, 25 So. 774; McCarver v. Griffin, 194 Ala. 634, 69 So. 920, Ann.Cas.1917C, 1172; Holczstein v. Bessemer Trust & Savings Bank, 223 Ala. 271, 136 So. 409.
This court pointed out in Brotherhood, etc. v. Trimm, 19 Ala.App. 429, 97 So. 770, that a plea in short by consent cured any possible error in sustaining demurrers to defendant's pleas.
As to the demand for trial by jury, it is only necessary to point out that the demand was...
To continue reading
Request your trial
-
Ward Mfg. Co. v. Miley
...Tex.Civ.App., 225 S.W.2d 1011, 1013; Pearson v. Electric Service Co. of Pensacola, 166 Kan. 300, 201 P.2d 643, 645; Cousins v. Harrison, 33 Ala.App. 199, 30 So.2d 393, 394; United States v. Bushwick Mills, 2 Cir., 165 F.2d 198, 202; 17 C.J.S., Contracts, § 356, p. 814; 1 Williston on Contra......
-
Wilson v. Scannavino
...Tex.Civ.App., 225 S.W.2d 1011, 1013; Pearson v. Electric Service Co. of Pensacola, 166 Kan. 300, 201 P.2d 643, 645; Cousins v. Harrison, 33 Ala. 199, 30 So.2d 393, 394; United States v. Bushwick Mills, 2 Cir., 165 F.2d 198, 202; 17 C.J.S. Contracts § 356, p. 814; 1 Williston on Contracts, R......
-
Cousins v. Harrison, 6 Div. 571.
...P. Cousins for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Cousins v. Harrison, 30 So.2d 393. denied. GARDNER, C. J., and FOSTER and LAWSON, JJ., concur. ...