Key v. Goodall, Brown & Co.
| Citation | 7 Ala.App. 227,60 So. 986 |
| Parties | KEY v. GOODALL, BROWN & CO. |
| Decision Date | 16 January 1913 |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.
Action by Goodall, Brown & Co., against J. A. Key. Judgment for plaintiff, and defendant appeals. Affirmed.
Ray & Cooner, of Jasper, for appellant.
Bankhead & Bankhead, of Jasper, for appellee.
Suit was brought by the appellee in the circuit court to recover for goods sold by it in the due course of business as wholesale merchants of Birmingham, Ala., to the appellant, a retail merchant of America Junction, Walker county, Ala. The complaint contained three counts; the first on account, the second on account stated, and the third for goods, wares, and merchandise sold, etc. Indorsed on the complaint was a statement that an itemized statement of the account sued on would be used in evidence.
The record contains various pleas, demurrers, and replications and the minute entry shows the court's rulings on these pleadings, but, after the last amendment of the complaint, it does not seem that any special pleas were filed, or that the pleas previously filed were refiled to the complaint as amended; and the appellant's counsel states in his brief that the defendant pleaded the general issue, and makes no insistence on the rulings of the court on the pleadings as error, although some of these rulings are assigned as error. Not, however, being insisted upon, they are waived. Harper v. Raisin Fer. Co., 148 Ala. 360, 42 So. 550; Polytinsky v. Patterson, 3 Ala. App. 302, 57 So 130; 3 Mayfield's Dig. p. 133. And we shall only treat such matters as are insisted on and argued in brief of counsel.
The first assignment of error insisted on by counsel in brief is that the court erred in not sustaining the defendant's objection to the verified itemized account offered in evidence by the plaintiff, because it was not competent evidence in support of the second count of the complaint. It is true that the verified account was not competent evidence under the second count of the complaint (Moore v Holdoway & Co., 138 Ala. 448, 35 So. 453; Comer & Co. v. Way & Edmonson, 107 Ala. 300, 19 So. 966, 54 Am. St. Rep. 93), but it was competent under other counts of the complaint (Clements v. Mayfield Woolen Mills, 128 Ala. 332, 29 So. 10); and, the objection being general to the admissibility of the evidence under the complaint as a whole, the court cannot be put in error for admitting the verified account in evidence. If the defendant desired to have this evidence limited and restricted to counts it was admissible and competent evidence to support, the duty rested upon him to do so, by appropriate instructions.
The action of the court in allowing the plaintiff to amend the complaint by striking out the words "a corporation," and inserting in lieu thereof "a partnership," and setting out the names of the parties composing the partnership, was without error. Lewis Lumber Co. v. Camody, 137 Ala. 578, 35 So. 126; Manistee Mill Co. v. Hobdy, 165 Ala. 411, 51 So. 871, 138 Am. St. Rep. 73. The court's ruling in this particular, however, is not shown by the bill of exceptions, but only by the record of the minutes of the court. So. Ry. Co. v. Pogue, 145 Ala. 444, 40 So. 565.
The objections to the questions, seeking to show a novation and acceptance of another, in lieu of the original debtor by Todd, the traveling salesman or "drummer" of the plaintiff, were properly sustained. The evidence disclosed no authority, upon the part of Todd, to bind the plaintiff in such a transaction. The fact that he was a salesman, with authority to sell goods for the plaintiff, does not of itself carry with it the implied authority to release the original debtor, accepted by the plaintiff, and substitute another in his place, or even to collect from the original purchaser the money due for the goods sold. Simon & Son v. Johnson, 105 Ala. 344, 16 So. 884, 53 Am. St. Rep. 125.
Any agreement between the defendant and Waldrop, by which the latter was to...
To continue reading
Request your trial
-
Halle v. Brooks
...... alone is inadmissible, as not embracing the principal of such. salesman. In Key v. Goodall, Brown & Co., 7 Ala. App. 227, 230, 60 So. 986, the court said that the fact. that the traveling salesman was authorized to sell goods for. the ......
-
Blue Ridge Elec. Membership Corp. v. Grannis Bros.
...the members of the partnership may be substituted by amending the process and allowing the pleadings to be amended. Key v. Goodall Brown & Co., 7 Ala.App. 227, 60 So. 986; Craig v. San Fernando Furniture Co., 89 Cal.App. 167, 264 P. 784; World Fire & Marine Ins. Co. v. Alliance Sandblasting......
-
Hughes v. Holsclaw
...... . . Fort,. Beddow & Ray and G. Ernest Jones, all of Birmingham, for. appellee. . . BROWN,. J. . . The. sole purpose of the statute, Code 1923, § 7705, was to. amplify the rule of evidence obtaining prior to its. ...112; Southern Railway Co. v. Bunnell,. 138 Ala. 247, 36 So. 380; Andrews, Allen & Moorefield v. Tucker, 127 Ala. 602, 29 So. 34; Key v. Goodall. Brown & Co., 7 Ala. App. 227, 60 So. 986. . . We have. considered the other rulings on evidence, and find no. reversible errors ......
-
Schellhorn v. Williams
...The amendment was permitted under a New York statute but the statute of limitations was not involved. In Key v. Goodall, Brown and Company, 7 Ala.App. 227, 60 So. 986, the trial court allowed the plaintiff to amend the complaint against the defendant by striking out the word 'corporation' a......