A.H. Andrews Co. v. Stowers Furniture Co.

• Decision Date: 14 April 1910
• Citation: 52 So. 316,166 Ala. 244
• Parties: A. H. ANDREWS CO. v. STOWERS FURNITURE CO.
• Court: Alabama Supreme Court

52 So. 316

166 Ala. 244

A. H. ANDREWS CO. v. STOWERS FURNITURE CO.

Supreme Court of Alabama

April 14, 1910

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by the A. H. Andrews Company against the Stowers Furniture Company for the price of certain chairs. Judgment for defendant, and plaintiff appeals. Affirmed.

The first four counts were the common counts. The fifth count is upon a contract made by correspondence, wherein the Stowers Furniture Company authorized the Andrews Company to sell T F. Wood certain chairs, to be by him selected, and to charge the same to the account of the Stowers Furniture Company. Count 6 was upon a guaranty for a sufficient and valuable consideration, based upon the contract above set out. Count 7 is upon the contract requesting and directing plaintiff to sell Wood certain chairs and charge them to the account of the Furniture Company.

Plea B is as follows: "Defendant says that on or about August 31, 1907, the plaintiff sold to one T. F. Wood certain opera chairs, for the recovery of the price of which this suit is brought, to wit, 150 No. 221 opera chairs, for the price of $5.50 each; that plaintiff agreed to charge said chairs to the defendant and to ship them to the defendant, and in consideration of said contract, and of the performance of the same by plaintiff, this defendant guaranteed said account. And defendant says that said chairs were never charged to nor shipped to this defendant, but, on the contrary, were charged to and shipped to said T. F. Wood; and defendant says that plaintiff should not recover."

The demurrers to plea B were as follows: "Said plea was too indefinite in this: While it states that plaintiff sold to T F. Wood certain opera chairs, it fails to allege sufficient facts and the consideration therefor, as to how plaintiff agreed with the defendant to charge and ship said chairs to the defendant. (2) Said plea is insufficient in this: That it fails to allege or aver or show wherein the defendant became a party to said transaction wherein and whereby plaintiff agreed to charge and ship said chairs to defendant. (3) It fails to aver or show whether the defendant and T. F. Wood agreed at the same time with defendant, or plaintiff with defendant and Wood, or how it was done. (4) It fails to allege or aver with whom plaintiff agreed to charge and ship said chairs to the defendant, whether with T. F. Wood or the defendant, and under what circumstances said agreement was made and entered into." There were other demurrers; but it is not deemed necessary to set them out.

Von L Thompson, for appellant.

John H Miller, for appellee.

SAYRE J.

Action on the common counts and on a special contract for the agreed price of 125 opera chairs, alleged to have been sold by plaintiff to defendant. There are also counts charging defendant as guarantor for one Wood, to whom the chairs are alleged, alternatively, to have been sold. All questions arising out of the pleadings were settled in the court below in favor of the defendant, appellee here. We think the case may be properly disposed of on consideration of the issues presented by the complaint and plea B.

This plea tendered a meritorious issue, and was not, as for any objection taken to it by the demurrer, defective in form or substance. Looking to the most obviously material feature of the defense presented, it appears that defendant undertook to guarantee the price of the chairs to plaintiff, on consideration in part of the plaintiff's promise to consign them to defendant, although they were sold to Wood. It is alleged that plaintiff failed to consign the chairs as agreed. Whether the agreement by which the defendant became bound was in writing, or made orally, was clearly of no consequence, unless the defendant made it so by pleading the statute of frauds. Other pleas set up that defense. The plea under consideration went upon an entirely different line. Further, both plaintiff and defendant were necessarily parties to any agreement by which the latter undertook for a consideration to guarantee to the former payment for the chairs. Such is the import of the plea. It succinctly states the facts necessary to the defense interposed, and there was no occasion to incumber it with the averment of other facts merely circumstantial.

On consideration of the evidence we are of the opinion that the plea referred to was proven without conflict or adverse inference. We will undertake to set out only enough of the evidence to make the situation clear: Wood applied to defendant, a furniture house in the city of Birmingham, to purchase chairs for a place of amusement which he was about to open. Defendant, being unable to meet his requirements out of its stock, referred him to plaintiff, a manufacturer of furniture in the city of Chicago, giving him a letter of introduction as a personal friend and customer, stating his purpose to buy chairs, and that "any selection that he might make same may be charged to our account." This was on August 21, 1907. On the same day defendant wrote to plaintiff, inclosing a copy of the letter they had given to Wood, and said: "In figuring this bill we want 50 per cent. profit net f. o. b. Birmingham, so in quoting prices kindly be guarded as we have stated." Wood presented his letter to the plaintiff in Chicago on August 29th. In the meantime (August 24th) plaintiff had written in substance that it could not safely add 50 per cent. to its net selling price with any hope of securing Wood's order, if he should be inclined to look about. Replying (August 27th) defendant said it would have to handle the account at its end of the road, stated that Wood would doubtless not look elsewhere, indicated its expectation of sharing in the profit of the sale, and concluded by leaving...