General Const. Co. v. Tennessee Valley Sand & Gravel Co.

• Decision Date: 11 June 1936
• Docket Number: 8 Div. 673
• Citation: 169 So. 319,232 Ala. 623
• Parties: GENERAL CONST. CO. v. TENNESSEE VALLEY SAND & GRAVEL CO.
• Court: Alabama Supreme Court

169 So. 319

232 Ala. 623

GENERAL CONST. CO. v. TENNESSEE VALLEY SAND & GRAVEL CO.

8 Div. 673

Supreme Court of Alabama

June 11, 1936

Rehearing Denied July 16, 1936

Appeal from Circuit Court, Marshall County; A.E. Hawkins, Judge.

Bill in equity by the General Construction Company against the Tennessee Valley Sand & Gravel Company, and cross-bill by respondent. From a decree for respondent, complainant appeals.

Affirmed.

Street Bradford & Street, of Guntersville, and Thos. E. Orr, of Albertville, for appellant.

Jos. H Nathan, of Sheffield, and Claud D. Scruggs, of Guntersville for appellee.

ANDERSON Chief Justice.

The appellee, the Tennessee Company, brought an action at law against appellant, who proceeded, under the statute, to have the cause transferred to the equity side of the docket and which was done with the consent of the appellee, the plaintiff in the action at law. So, this court is not concerned with the propriety or correctness of the transfer.

The appellant then filed its bill in equity setting up a recoupment arising out of the breach of warranty or misrepresentation in the sale of a certain barge which was the basis of the consideration for which the action at law was brought, also for the breach of a contract of sale of certain sand and gravel.

While the rule of pleading is perhaps not as strict and technical in equity as at law, we are not disposed to differ with counsel for appellant that an answer should either deny or set up matter in avoidance of the averments of the bill of complaint.

As to that feature of the bill of complaint proceeding on the contract for the sale of the sand and gravel, the answer expressly and unequivocally denies the existence of such a contract.

As to the averments as to the breach of warranty or misrepresentation as to the size of the barge, while the answer is not as explicit as it might be, it, in effect, sets up a course of conduct showing that the appellant did not rely upon the representation as to the size of the barge and waived the same if made.

It is true, that in the opening of negotiations for the acquirement by appellant of a barge, it was understood that said barge was to be 80 feet long and 22 feet wide, and the barge in question was, in fact, not quite so long or wide. The proof however, shows that the purchase was not made until two of the appellant's officers or agents went to Florence and inspected the King, a...