J.C. Lysle Milling Co. v. North Alabama Grocery Co.

• Citation: 201 Ala. 222,77 So. 748
• Decision Date: 15 November 1917
• Docket Number: 7 Div. 795
• Parties: J.C. LYSLE MILLING CO. v. NORTH ALABAMA GROCERY CO.
• Court: Supreme Court of Alabama

77 So. 748

201 Ala. 222

J.C. LYSLE MILLING CO. v. NORTH ALABAMA GROCERY CO.

7 Div. 795

Supreme Court of Alabama

November 15, 1917

Rehearing Denied Jan. 24, 1918

Appeal from City Court of Gadsden; John H. Disque, Judge.

Assumpsit by the J.C. Lysle Milling Company against the North Alabama Grocery Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The following are the pleas:

3. Defendant says that at the time said action was commenced plaintiff was indebted to the defendant in the sum of $4,000 as damages for the breach of a contract hereinafter more fully set forth, which the defendant hereby offers to set off against the demand of the plaintiff, and claims judgment for the excess. The damages herein claimed arise out of a contract breached by the plaintiff, entered into by and between the plaintiff and defendant on, to wit, the 3d day of July, 1914, whereby the plaintiff agreed and contracted to sell to the defendant 800 barrels of flour on a basis of $5.15 per barrel for a certain grade of flour known as White Crest, said flour to be shipped by the plaintiff to the defendant at any time before the 28th day of October, 1914 on demand of the defendant, on terms as follows, to wit Draft with bill of lading attached; said flour to be paid for on arrival at Gadsden, except as to 175 barrels of flour which was agreed to be delivered to defendant on open account. And defendant avers that after the plaintiff, under the said agreement, had shipped the defendant 175 barrels of said flour, then the defendant demanded of the plaintiff, on the 3d day of September, 1914, that 175 barrels of the remainder of said flour so contracted for be shipped each week on the terms as contracted for and as above stated, and the defendant avers that the plaintiff wholly refused and failed on said demand to ship any flour other than the 175 barrels that had already been delivered on said contract. And defendant avers that it was ready, able, and willing to comply with the terms of the contract on its part. And defendant avers that it suffered damages in the sum of $4,000 on account of the failure of the plaintiff to ship the remainder of said flour.

Pleas 4 and 5 allege the same state of facts as alleged in lea 3 except that in plea 4 it is alleged that the agreement was for 700 barrels on a basis of $5.05, and in plea 5 it is alleged that the agreement was to ship 1,500 barrels on a basis of $5.15 per barrel. Neither plea 4 nor plea 5 alleges defendant's readiness, ability, or willingness to receive and pay for the flour ordered out.

The plaintiff filed replications setting up the failure of defendant to pay for the 175 barrels delivered and its annulment of the contract for the reason of their failure to pay, as it had a right to do; also a provision of the contract that the order was booked for 60 days shipment, with the privilege of extending the booking 30 days; that defendant did not ask the privilege of extending the booking for 30 days, and the contract terminated 60 days from the date thereof, and on September 1, 1914, and that within the said 60 days the defendant ordered out only one carload of flour under said contract, and that the plaintiff did deliver to the defendant the flour so ordered out.

Sterling A. Wood, of Birmingham, and Dortch & Allen, of Gadsden, for appellant.

Goodhue & Brindley, of Gadsden, for appellee.

THOMAS J.

The suit was for the recovery of the contract price of flour delivered by appellant, and, on pleas of recoupment, resulted in a judgment over for the defendant.

Recoupment is an innovation upon the strict rules of law, sanctioned by the courts for the purpose of doing equity between the parties, where it could not be otherwise attained or could not be attained without an expensive or circuitous process. Mason & Craig v. Heyward, 3 Minn. 182 (Gil. 116); Stow v. Yarwood et al., 14 Ill. 424; Upton & Co. v. Julian & Co., 7 Ohio St. 95; Ives v. Van Epps, 22 Wend. (N.Y.) 155; Hinsdell v. Weed, 5 Denio (N.Y.) 172; Batterman v. Pierce, 3 Hill (N.Y.) 171.

Mr. Waterman distinguishes set-off from recoupment as follows:

"(1) In being confined to matters arising out of and connected with the transaction or contract upon which the suit is brought; (2) in having no regard to whether or not such matter be liquidated or unliquidated; and (3) that the judgment is not the subject of statutory regulation, but controlled by the rules of the common law." Waterman on Set-Off (2d Ed.) § 464.

Our statutes, however, provide for a judgment over in set-off (Code, § 5860), and in recoupment--

"if the claim or demand of the defendant equals the claim or demand of the plaintiff, judgment must be rendered for the defendant; if the claim or demand of the defendant exceeds the claim or demand of the plaintiff, and the plaintiff be the party liable to its satisfaction, judgment must be rendered against him in favor of the defendant for such excess and all costs." Code,§ 5865.

See authorities collected in T.L. Farrow Mercantile Co. v. Riggins, 14 Ala.App. 529, 71 So. 963. It has been declared that the statute has not enlarged the class of demands which may be the subject of recoupment. Martin Dumee & Co. v. Brown et al., 75 Ala. 442; Ewing & Gains v. Shaw & Co., 83 Ala. 333, 335, 3 So. 692; Behrman & Winter v. Newton, 103 Ala. 525, 15 So. 838; Grisham v. Bodman, 111 Ala. 194, 20 So. 514.

Under a plea of recoupment the defendant may recover damages sustained by him which grew out of the matter set forth in the complaint, or which arose from plaintiff's breach of the contract on which the suit is founded, or from his violation of a duty imposed by the contract. Behrman & Winter, v. Newton, supra; Theo Poull & Co. v. Foy-Hays Const. Co., 159 Ala. 453, 461, 48 So. 785; Mizell v. Farmers' Bank of Clio, 180 Ala. 568, 573, 61 So. 272.

Since the enactment of the statute (Code, § 5865), recoupment must be specially pleaded to be available as a defense; that is to say, must contain the same averments which would make it a good complaint if the claim sought to be set off or recouped were a suit brought thereon in the first instance. Waterman on Set-Off, 598; Crawford v. Simonton, 7 Port. 110; Lang v. Waters, 47 Ala. 624; Sledge v. Swift, Murphy & Co., 53 Ala. 110, 114; Lawton v. Ricketts, 104 Ala. 430, 16 So. 59; Ansley v. Bank of Piedmont, 113 Ala. 467, 21 So. 59, 59 Am.St.Rep. 122; Carolina Portland Cement Co. v. Ala. Const. Co., 162 Ala. 380, 385, 50 So. 332; Berlin Machine Works v. Ewart Lumber Co., 184 Ala. 272, 63 So. 567; Bixby-Theisen v. Evans, 186 Ala. 507, 512, 65 So. 81.

A complaint for a breach of contract for the failure of a purchaser to buy a stone was declared to be insufficient--

"if it fails to aver either the ability, readiness, or willingness of plaintiff to furnish the stone within the time required by the contract, or that the stone had been delivered thereto." Terrell v. Nelson et al., 177 Ala. 596, 58 So. 989; Terrell v. Nelson et al., 74 So. 929, 931; Elliott v. Howison, 146 Ala. 568, 583, 40 So. 1018; Moss v. King et al., 186 Ala. 475, 481, 65 So. 180; Saunders v. McDonough et al., 191 Ala. 119, 134, 67 So. 591; McGehee v. Hill, 4 Port. 170, 176, 29 Am.Dec. 277.

As early as McGehee v. Hill, supra, it was declared as a settled rule of law that:

"When a contract is dependent, as where one agrees to sell and deliver, and the other agrees to pay on delivery, in an action for nondelivery, it is necessary for the plaintiff to aver and prove a readiness to pay on his part, whether the other party was ready at the place to deliver or not. *** Hence, in such cases, if either vendor or vendee wish to compel the other to fulfil his contract, he must make his part of the agreement precedent, and cannot proceed against the other without an actual performance of the agreement, on his part, or a readiness and ability; and an averment to that effect is always made in the declaration containing dependent undertakings, and that averment must be supported by proof."

This announcement of the rule is rested on Bank of Columbia v. Hagner, 1 Pet. 465, 7 L.Ed. 219. This rule was reaffirmed in Moss v. King, supra.

Tested by the foregoing authorities, the fourth and fifth pleas of recoupment were subject to the demurrer, overruled by the trial court, that the pleas failed to aver that the defendant was ready, willing, and able to comply with its part of the contract, to receive and pay for the flour upon arrival, and the fact that the shipments were to be made upon draft with bill of lading attached did not relieve the defendant of the necessity to make this material averment in his pleas.

Moreover, the third plea is not sufficiently definite in averment that defendant had paid for the 175 barrels of flour received by it from the plaintiff, under the contract, as it had contracted to do, or that it was not so in default as to such payment as to authorize a rescission of the whole contract. It should have been averred that the defendant was not only ready and able to pay, but was willing to pay, and that it offered to pay, in compliance with the contract provisions, for said 175 barrels of flour, or else that payment therefor was excused by the contract. For aught that appears in the plea, when, on the 3d day of September, 1914, the defendant demanded of the plaintiff "the remainder of said flour so contracted to be shipped each week," it was in default for nonpayment of the contract price for the said 175 barrels already received. If such was the fact, no rule of law would require the seller to make further shipments under the contract until receipts of payment of the agreed consideration for the deliveries actually made. Byrne Mill Co. v. Robertson, 149 Ala. 273, 284, 42 So. 1008. For the...