Deming Co. v. Bryan

• Decision Date: 23 November 1911
• Citation: 2 Ala.App. 317,56 So. 754
• Parties: DEMING CO. v. BRYAN.
• Court: Alabama Court of Appeals

56 So. 754

2 Ala.App. 317

DEMING CO. v. BRYAN.

Court of Appeals of Alabama

November 23, 1911

Rehearing Denied Dec. 16, 1911.

Appeal from Circuit Court, Blount County; A. H. Alston, Judge.

Action by the Deming Company against E. J. Bryan. Judgment for defendant, and plaintiff appeals. Affirmed.

Von L Thompson, for appellant.

Campbell & Johnston, for appellee.

WALKER, P.J.

When during the trial, evidence was introduced tending to show that a vital part of the machinery for the price of which the suit was brought had been left out of the initial shipment the defendant proposed to file special pleas, setting up the failure of the plaintiff to ship the machinery in its entirety within a reasonable time. Thereupon the plaintiff insisted that evidence on that subject, if admissible at all could properly be brought in under the general issue, and, as stated in the bill of exceptions, "agreed that said matters could be brought in under the general issue." We construe that agreement, made under the circumstances stated as a waiver by the plaintiff of any requirement of further pleading on the part of the defendant to enable him to avail himself of a ground of defense based upon a failure of the plaintiff to comply with the terms of the sale as to the time within which the shipment should be made. Such requirement of further pleading by the defendant was one which the plaintiff could waive. Having admitted the sufficiency of its adversary's pleading to let in the defense proposed to be set up, the plaintiff is precluded from now claiming that that ground of defense was not available to the defendant under the pleadings as they stood. It cannot here be heard to impute error to the action of the trial court in that regard, to which it formally consented.

Following some correspondence between the parties in reference to plant-spraying machinery in which the plaintiff dealt, the defendant, on June 4, 1906, inquired of the plaintiff by wire as to how soon it could ship a designated spraying outfit, to which the plaintiff replied on the same day by wire that it could ship immediately from stock the machinery inquired about. On June 7th the defendant telegraphed to the plaintiff to "ship quick to Reids, Ala.," the designated machinery, and "to rush and trace. L. &amp N. prepay." The plaintiff made a shipment to the defendant the next day; but there was evidence tending to show that an essential part of the...