Ehrman Mfg. Co. v. Carroll & Sons

• Decision Date: 22 October 1925
• Docket Number: 4 Div. 224
• Citation: 106 So. 165,214 Ala. 6
• Parties: EHRMAN MFG. CO. v. CARROLL & SONS.
• Court: Alabama Supreme Court

106 So. 165

214 Ala. 6

EHRMAN MFG. CO. v. CARROLL & SONS.

4 Div. 224

Supreme Court of Alabama

October 22, 1925

Rehearing Denied Nov. 19, 1925

Appeal from Circuit Court, Dale County; J.S. Williams, Judge.

Action in assumpsit by the Ehrman Manufacturing Company against Carroll & Sons. From a judgment over for defendant, plaintiff appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

O.S Lewis, of Dothan, for appellant.

Riley &amp Stokes and Sollie & Sollie, all of Ozark, for appellee.

ANDERSON C.J.

The plaintiff sued the defendants for a past-due account, which was undisputed, and, if this had been all, the plaintiff would have been entitled to a judgment for the amount claimed. The defendants, however, set up, by way of recoupment, the breach of a contract for the shipment of 200 dozen overalls of January 18, 1918, and recovered a judgment over, so the only controversy in the case arose over the defense to the action and not the existence of the plaintiff's cause of action.

The order given by the defendants, through the broker or agent Botts, and which the defendants claim was breached, expressly provided that it was conditional upon acceptance by the plaintiff when received. The burden was therefore upon the defendants to prove that said order had been received and accepted by the plaintiff. It seems that on the 18th day of January, 1918, Botts took two orders from the defendants, the one in question for May delivery, and a smaller order to be filled at once, and which said last order was filled and paid by the defendants. The defendants claim that Botts gave them a copy or duplicate of the larger order, and that it described and gave the size of the garments ordered, and, while the plaintiff admitted getting two orders from Botts of January 18th, they claim that the one in question did not sufficiently describe the goods, and was, in fact, not like the duplicate or copy introduced by the defendants, and that it was rejected and never accepted that they received no order of which the defendants paper was a copy. They admit receiving two orders of January 18th; one of which they filled, and the other they declined to accept and so notified Botts. The plaintiff also attaches the larger order received from Botts, not a copy, but the original, and which does not correspond with the defendants' copy. The plaintiff's witness Reckert testified that they never received such an order as the defendants' copy, and introduced the original which they did not accept, and that they never in any form accepted the larger order of January...