Kenan v. Lindsay

Decision Date15 May 1900
Citation127 Ala. 270,28 So. 570
CourtAlabama Supreme Court

Appeal from circuit court, Geneva county; John P. Hubbard, Judge.

Action by W. K. Kenan against Larkin Lindsay. From a judgment for defendant, plaintiff appeals. Reversed.

The complaint contained four counts. The three first counts were the common counts for $400, as money due to plaintiff, and for money had and received by defendant for him. In the fourth, (count A) the plaintiff claimed from defendant $400 for that, on or about the 3d day of May, 1898, one M. J Kierce was indebted to plaintiff in the sum of $400; that said Kierce owned a lot of cattle in Geneva, which he sold to defendant, who then and there agreed to pay for them, and that, as a part of the purchase price of the cattle, the defendant at the time promised and agreed to pay plaintiff the sum of $400, and for said promise and agreement plaintiff discharged said Kierce from all liability for said debt, and the same was thereby paid by said promise; that in pursuance of said contract of purchase of said cattle from said Kierce for which defendant agreed to pay to plaintiff the said sum of $400, as a part of the purchase price for said cattle, he took and went into the possession of the cattle and sold them, but failed and refused to pay the said sum of $400.

To this complaint defendant interposed several pleas. The first and second were the general issue, the third was a plea of the statute of limitations. It is unnecessary to set out in detail any of the other pleas except the sixth and seventh. The sixth set up in substance that at the time said agreement was entered into between said parties, it was further stipulated and agreed, that "if anything else should come against said cattle in the way of indebtedness or mortgages," defendant would not be liable to plaintiff for the said $400, and that it was agreed, if any other indebtedness came against said cattle, defendant would not be liable to plaintiff for said sum of $400; and defendant averred, that at the time, there were other claims against said cattle, to wit, that R. Tillis held a mortgage on six head of them for $80, against said Kierce, and he immediately brought his mortgage to defendant and demanded payment from him and defendant was forced to pay the same; that one John Fleming claimed also $120 under an alleged "retain" title note, wherefore he pleads he is not liable to pay the plaintiff.

The seventh set up, that at the time of the said sale referred to in said count, plaintiff and defendant did make an agreement by which defendant should pay plaintiff the sum of $400 of the proceeds of the cattle sold, but said agreement was based upon the condition that said amount should not be paid to plaintiff if there were any liens or incumbrances upon the said property turned over to defendant, if defendant had the same to pay, and that there was an incumbrance upon said cattle; that R. Tillis held a mortgage on six head of said cattle which defendant was forced to pay.

The plaintiff demurred to pleas 6 and 7, each, on the same ground: that they fail to aver that plaintiff at the time of the agreement made any statement or representation to defendant that the cattle were unincumbered. These demurrers were severally overruled. Issue was then joined on pleas 1 2, 3, 6 and 7.

After the introduction of all the evidence defendant withdrew pleas numbered 3, A, and B. The facts of the case are sufficiently stated in the opinion.

Upon the introduction of all the evidence, plaintiff requested the court to give to the jury, among others, the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence, the jury should find for the plaintiff." (5) "If the jury believe the evidence, the jury should find the issue in favor of the plaintiff upon the defendant's plea No. 6." (6) "If the jury believe the evidence, the jury should find the issue in favor of the plaintiff upon defendant's plea No. 7."

There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

P. N. Hickman, for appellant.

Mulkey & Mulkey, for appellee.


1. The first three assignments of error relate to rulings of the court on pleas 3, A, and B. The judgment entry recites, that "after the evidence was concluded, the defendant withdrew pleas No. A and B." The latter two of these pleas, are not copied in the transcript, and defendant waives discussion of the rulings of the court on them. After the defendant voluntarily withdrew plea No. 3, he thereby eliminated from the case any consideration of matters set up in it, as a defense to the action, and the plaintiff cannot be heard to question the rulings of the court adversely to him on this plea. Its withdrawal left no room for him to complain, as he undertakes here to do, of the overruling of his demurrer to, and his motion to strike said plea. The defendant, by withdrawing the plea, accommodated him in all he undertook to do by his motion and demurrer to get rid of the defense there set up.

2. The court refused to strike pleas 6 and 7 to count A of the complaint, and overruled the demurrers to them. These rulings are made the basis of assignments 4 and 5; but counsel does not, in the brief filed, insist on these assignments, further than to say, he thinks the rulings of the court were wrong, which without more will be treated as a waiver of them.

3. The plaintiff's counsel risks his case upon the contention, that the court erred in refusing to give for him as requested the general charge, and upon the refusal to give his charges numbered 5 and 6 (assignments of error 7 and 8).

It is common learning, extracted from the books, that all express contracts resolve themselves into an offer by one of the parties and an acceptance by the other; that the act...

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13 cases
  • Nashville, C. & St. L. Ry. v. Blackwell
    • United States
    • Alabama Supreme Court
    • March 23, 1918
    ...Ashford v. Ashford, 136 Ala. 631, 635, 34 So. 10, 96 Am.St.Rep. 82; Pearson v. Adams, 129 Ala. 157, 169, 29 So. 977; Kenan v. Lindsay, 127 Ala. 270, 273, 28 So. 570; AEtna Life Ins. Co. v. Lasseter, 153 Ala. 630, So. 166, 15 L.R.A. (N.S.) 252; Fitts v. Phoenix Co., 153 Ala. 635, 45 So. 150;......
  • Memphis & C.R. Co. v. Martin
    • United States
    • Alabama Supreme Court
    • November 13, 1901
    ... ... not discussed in the brief of appellant's counsel, and we ... therefore do not consider them. Kenan v. Lindsay, 28 ... So. 570; Henry v. Hall, 106 Ala. 84, 17 So. 187, 54 ... Am. St. Rep. 22; Railroad Co. v. Morgan, 114 Ala ... 449, 456, 22 So ... ...
  • J.R. Watkins Co. v. Hill
    • United States
    • Alabama Supreme Court
    • January 28, 1926
    ... ... guarantor and guarantee, the actual acceptance by the latter ... would be required. Kenan v. Lindsay, 28 So. 570, 127 ... Ala. 270. That is to say, where a contract is signed by the ... principal and his guarantors and forwarded by mail ... ...
  • Park v. Whitfield
    • United States
    • Alabama Supreme Court
    • June 7, 1923
    ... ... are not argued in brief by appellant. They will be considered ... by us as waived, and we will not review them. Kenan v ... Lindsay, 127 Ala. 270, head note 2, 28 So. 570 ... The ... record is free from error, and the decree is affirmed ... ...
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