Greer v. Malone-Beall Co.

• Decision Date: 13 February 1913
• Citation: 61 So. 285,180 Ala. 602
• Parties: GREER v. MALONE-BEALL CO.
• Court: Alabama Supreme Court

61 So. 285

180 Ala. 602

GREER v. MALONE-BEALL CO.

Supreme Court of Alabama

February 13, 1913

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Assumpsit by P.E. Greer against the Malone-Beall Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The complaint alleges the contract by and between the parties executed on January 5, 1906, by the terms of which defendant agreed to pay plaintiff 80 cents on the dollar of the invoice price for plaintiff's stock of merchandise and $800 for plaintiff's warehouse in Slocomb, Ala., and to pay plaintiff the sum of $60 per month for as many months in the year 1906 as might be necessary for plaintiff, as an employé of defendant, to make sales of fertilizer to customers of defendant, and to take notes therefor, and to pay plaintiff on December 1, 1906, 12 1/2 per cent. on the cash price of the goods sold to the following named persons who had been customers of plaintiff during the year 1905 (here follows list of names of customers), and to pay plaintiff $2 per ton on all fertilizer sold by it during the year 1906, to the following named persons, who were purchasers from plaintiff of fertilizer during the year 1905 (here follows list of purchasers). Plaintiff avers that both parties have executed a contract in full, except that the defendant has failed and refused, and still fails and refuses, to pay plaintiff the profits on fertilizer sold as agreed, as well as the 12 1/2 per cent. on the cash price of goods and merchandise sold by it to the persons hereinbefore named who had been customers of plaintiff during the year 1905. The complaint then sets out in detail the number of tons of fertilizer sold and the merchandise sold, and seeks to charge defendant with the profits, as alleged in the contract.

The defendant filed the following special pleas:

(1) "Defendant denies the allegations of said count as amended."

(2) "For further answer to said count as amended, defendant says that, at and prior to the commencement of this action the plaintiff herein owed defendant the sum, to wit, $3,000 which said sum was due before said suit commenced, and which said sum was due and owing by reason and on account of the agreement made by plaintiff to pay all accounts and demands due plaintiff by the persons and customers set forth in said amended count 3, and the defendant avers that the amount due by said customers at the time of the commencement of this suit, and for which the plaintiff became responsible, was $3,000, and that the same had not been paid when the suit was commenced, nor has not been paid since, and is still due that plaintiff became responsible for the payment thereof to this defendant, and promised to pay the same, and is fully due the same, and defendant herein offers to offset said amount against the claim of the plaintiff. The amount herein offered as an offset does not include the accounts and demands due, and payment of which were guaranteed as to the following persons, to wit: J.G. Jones, B.F. Greer, J.F Pumphrey, J.C. Kennedy, and Henry Bedsole. The amount due by the other named persons, and for which plaintiff became responsible, is in the sum of...