La Duke v. John T. Barbee & Co.
| Decision Date | 07 December 1916 |
| Docket Number | 8 Div. 947 |
| Citation | 73 So. 472,198 Ala. 234 |
| Parties | LA DUKE v. JOHN T. BARBEE & CO. |
| Court | Alabama Supreme Court |
Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.
Action by John T. Barbee & Co., against Tom La Duke. From judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under Act April 18, 1911 (Laws 1911, p. 450), § 6 Affirmed.
Eyster & Eyster, of New Decatur, for appellant.
Melvin Hutson, of Decatur, for appellee.
The case made on appeal is thus stated by counsel for appellant in their brief:
John T. Barbee & Co., a corporation, brought suit against Tom La Duke in the justice court of W.A. Pettey, on the 5th day of August, 1913, claiming $80 due by account made on or about June 13, 1912. Judgment was rendered in the justice court in favor of the plaintiff, the cause appealed to the Morgan county law and equity court, and the court directed a verdict of the jury in that case in favor of plaintiff on request of plaintiff in writing.
Jerry Tarpey was the only witness introduced, and his evidence is in effect, that he and a fellow named Hall were in business in New Decatur, Ala., prior to September, 1912; that prior to this date the said partnership of Hall & Tarpey bought a shipment of whisky from John T. Barbee & Co.; that said shipment was placed in the place of business of Hall & Tarpey on Second avenue, New Decatur, and that Hall & Tarpey never paid for the whisky; that the original amount due for the whisky was $146.50; that Hall & Tarpey had paid half of the amount, leaving a balance of $73.25; that in September, 1912, Hall & Tarpey sold to Tom La Duke their place of business in New Decatur, Ala.; that this sale was made for the sum of $500; that it was part of the agreement on the part of La Duke to pay the amount owed by said Hall & Tarpey to John T. Barbee & Co., for this shipment of whisky from Barbee & Co., to Hall & Tarpey.
The evidence shows further that a part of the consideration of this sale from Hall & Tarpey to La Duke was that Hall & Tarpey sold and transferred to said La Duke their goods, fixtures, business, and accounts, and money on hand in the bank; that part of the stock which Hall & Tarpey sold to Tom La Duke was glasses, spoons, bars, fixtures, money in the bank, and whisky; that the whole business was sold at one time to La Duke for one consideration, and involving only one transaction, and that said La Duke, in exchange for the stock of goods, accounts, whiskies, and business of the said Hall & Tarpey in New Decatur, Ala., agreed to pay the indebtedness of Hall & Tarpey to Barbee & Co.
This sole witness also testified that:
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