Jasper Mercantile Co. v. O'Rear

• Decision Date: 16 June 1896
• Citation: 112 Ala. 247,20 So. 583
• Court: Alabama Supreme Court
• Parties: JASPER MERCANTILE CO. v. O'REAR.

20 So. 583

112 Ala. 247

JASPER MERCANTILE CO. v. O'REAR.

Supreme Court of Alabama

June 16, 1896

Appeal from circuit court, Walker county; James J. Banks, Judge.

Action on an account by the Jasper Mercantile Company, a corporation, against Martin O'Rear. Judgment for defendant. Plaintiff appeals. Reversed.

The defendant pleaded the general issue, payment, and the following special pleas: "(4) The defendant, for further defense to the action of plaintiff, says that at the time said action was commenced the plaintiff was indebted to G. D O'Rear and Martin O'Rear, merchant co-partners trading under the firm name of G. D. O'Rear & Co., in the sum of one hundred dollars, by account due on the 1st day of April, 1893 (the defendant being the Martin O'Rear of said firm of G. D. O'Rear & Co.), which account the defendant hereby offers to set off against the demand of the plaintiff, and claims judgment for the excess; for that before and at the time of the making of the account sued on by plaintiff, it was understood and agreed on, by and between the parties hereto and said G. D. O'Rear, that the claim sued on by plaintiff should be set off by said account made by the plaintiff with said G. D. O'Rear & Co., and defendant avers that said partner, G. D. O'Rear, assented to his use of said account as a set-off against plaintiff's demand in this action. (5) The defendant, for further defense to the action of plaintiff, says that at the time said action was commenced the plaintiff was indebted to G. D. O'Rear and Martin O'Rear, merchant co-partners trading under the firm name and style of G. D. O'Rear &amp Co., in the sum of one hundred dollars, by account due on the 1st day of April, 1893 (the defendant being the Martin O'Rear of said firm of G. D. O'Rear & Co.), which account the defendant hereby offers to set off against the demand of plaintiff, and claims judgment for the excess. And defendant avers that, before this suit was begun, his said partner, G. D. O'Rear, assented to his use of said account as a set-off against plaintiff's demand in this action. (6) The defendant, for further defense to the action of plaintiff, says that at the time said action was commenced the plaintiff was indebted to G. D. O'Rear and Martin O'Rear, merchant co-partners trading under the firm name of G. D. O'Rear & Co., in the sum of one hundred dollars by account due on the 1st day of April, 1893 (the defendant being the Martin O'Rear of the said firm of G. D O'Rear & Co.), which account the defendant thereby offers to set off against the demand of the plaintiff. And defendant avers that before this suit was begun his said partner, G. D O'Rear, assented to his use of said account as a set-off against plaintiff's demand in this action." To the fourth, fifth, and sixth pleas, the plaintiff demurred upon the following grounds: "(1) The said pleas show at the time of the commencement of this suit the demand which defendant offers to set off was an account due a partnership. (2) The said demand offered to be set off is wanting in mutuality. (3) The said pleas show that the demand offered to be set off was not owned by the defendant in absolute right at the time this suit was brought. (4) Said pleas fail to allege that plaintiff knew of said assent by G. D. O'Rear before the bringing of this suit." These demurrers were overruled, and the plaintiff filed the following replication: "For further replication to said fourth, fifth, and sixth pleas, plaintiff says that the agreement between G. D. O'Rear and Martin O'Rear, his partner, was that Martin O'Rear should use said partnership claim only to the extent that it extinguished the claim which the plaintiff had against him, said Martin O'Rear." To this replication the defendant demurred upon the ground that it was a departure from the complainant's complaint, and the said replication neither denies the facts averred in said pleas, nor does it confess the same, nor set up new facts to avoid the legal effect thereof. The judgment entry, as copied in the transcript, as pertaining to the rulings upon the pleadings, was as follows: "This day came the plaintiff by attorney, and came also the defendant in person and by attorney, and plaintiff's demurrer to the fourth, fifth, and sixth pleas was overruled, and demurrer to the other pleas sustained. Demurrer to replication to fourth, fifth, and sixth pleas sustained." The bill of exceptions recites "that it was admitted that the account of the Jasper Mercantile Company against Martin O'Rear, due on, to wit, the 1st day of June, 1893, for $47.45, was correct." As shown by the bill of exceptions, the evidence on behalf of defendant tended to show that G. D. O'Rear & Co., a mercantile firm composed of G. D. O'Rear and Martin O'Rear, the defendant, did a grocery business in the city of Jasper, Ala., and that the plaintiffs did a dry-goods business in said city; that Long Bros. was a mercantile firm which also did a grocery business in the same city; that the Lady Ensley Coal, Iron & Railroad Company operated some coke ovens in Jasper, Ala., and issued to its employés, at the time, checks, which, when taken in by said Long Bros. and the Jasper Mercantile Company, they would cash on their pay day, Less 7 1/2 per cent., but would not cash the time checks for any other parties except Long Bros. and the said Jasper Mercantile Company. In November, 1892, Robert Lemert, the general manager of the Jasper Mercantile Company, for and on behalf of plaintiff, having full authority thereto, entered into an agreement with G. D. O'Rear, for and on behalf of the firm of G. D. O'Rear & Co., by which it was agreed that G. D. O'Rear & Co. should take up the checks issued by the Lady Ensley Company, and for whatever purchases were made by G. D. O'Rear or Martin O'Rear, or G. D. O'Rear & Co., from the Jasper Mercantile Company, the checks issued by the Lady Ensley Company were to be taken in payment at their face value, and at the end of each month the checks which G. D. O'Rear & Co. had on hand should be turned in to the Jasper Mercantile Company; and when the Jasper Mercantile Company received the money from the Lady Ensley Company, which was the face value, less 7 1/2 per cent., they were to pay the money over to G. D. O'Rear & Co., less such amount or amounts as G. D. O'Rear or Martin O'Rear, or G. D. O'Rear & Co., had traded out with the Jasper Mercantile Company, if any. This agreement was carried out, without objection on the part of anybody, until about March 27, 1893, when, Long Bros. finding out the agreement between the Jasper Mercantile Company and G. D. O'Rear & Co., the agreement was modified to this extent: Instead of G. D. O'Rear & Co. taking the checks from their customers direct, they sent their customers to the Jasper Mercantile Company, and the Jasper Mercantile Company took the checks, and issued orders on G. D. O'Rear & Co. But these orders were, in all respects, to take the place the checks of the Lady Ensley Company under the original agreement. The evidence for the defendant further tended to show that on the 1st day of April, 1893, G. D. O'Rear & Co. turned over to the Jasper Mercantile Company orders which were given under this agreement on the 27th and 29th days of March, 1893, amounting to $5, and checks under this agreement amounting to $64.30, and credited to G. D. O'Rear & Co. on the books of the Jasper Mercantile Company in the same manner as had been done with the checks for...