Kolsky v. Enslen

Citation103 Ala. 97,15 So. 558
PartiesKOLSKY v. ENSLEN.
Decision Date03 May 1894
CourtSupreme Court of Alabama

Appeal from city court of Birmingham; H. A. Thorpe, Judge.

Action by A. Kolsky against E. F. Enslen to recover on a contract. Judgment for defendant, and plaintiff appeals. Affirmed.

The action was founded upon the following contract: "A Kolsky, Esq., Birmingham, Ala.-Dear Sir: We hereby agree to refund to you, on surrender to us by you of your shares of interest in the Ea. Tenn. & No. Ala. Coal & Iron Co., at the end of two years from this date, the sum of $800, being the amount paid for ten shares of the 'ground-floor stock' of said company by you this day; in other words we guaranty you against loss of principal invested. [Signed] E. F. Enslen. A. S. Loventhal. By J. C. Marks." Among the other defenses set up by the defendant in several special pleas were the following: "(2) Defendant says that said alleged agreement is without consideration. (3) Defendant says that after the date of the alleged contract, and before the expiration of two years from said date, the plaintiff transferred or surrendered the ten shares of stock in the East Tennessee & North Alabama Coal & Iron Company mentioned in the complaint to the company, and, in lieu and in consideration of such surrender, received from said company to wit, seventy shares of a new issue of stock in said company, and voluntarily surrendered to said company one-third of his said new stock, or returned the said one-third of his new stock to said company, to be held by it as treasury stock. (4) Defendant says that after the date of the alleged contract, and before the expiration of two years from said date, the said company issued to plaintiff a bond for one thousand dollars, secured by a deed of trust or mortgage on said company's property, and also issued to plaintiff a certificate for a number of shares, to wit seventy-five shares of a new issue of stock in said company, and that plaintiff received the same, and that the consideration for said issue of said bond and new stock was the return of said ten shares of stock described in the complaint, wherefore defendant says that plaintiff disabled himself to comply with his part of said alleged contract." To the second plea the plaintiff demurred, on the ground that it "states a conclusion, and fails to set forth any facts." The substance of the demurrers to the third and fourth pleas is sufficiently stated in the opinion. These demurrers were all overruled, and the plaintiff filed several replications to the third and fourth pleas. The substance of these replications is sufficiently stated in the opinion. To these several replications the defendant demurred, on the grounds, substantially, that they did not allege that the defendant agreed to receive the said new stock in lieu of the 10 shares, as described in the complaint, and that the defendant's right to insist upon the terms of his original contract was not impaired by the issue of the new stock. The demurrers to the replications were sustained, and, in accordance with the verdict of the jury impaneled to try the cause, the court rendered judgment for the defendant.

E. E. Webb and W. R. Houghton, for appellant.

E. K. Campbell and W. C. Ward, for appellee.

BRICKELL C.J.

The assignments of error are directed solely to the revision of rulings of the court below, overruling demurrers to pleas, and sustaining demurrers to replications; and it is convenient to consider these rulings in the order in which they have been argued by counsel.

1. The action is founded on a contract or agreement in writing, and the first plea to which our attention is drawn is brief. Omitting the commencement, it merely alleges "that said agreement is without consideration." The Code (section 2769) declares that every written contract, the foundation of suit, imports a sufficient consideration which may be impeached by plea, "and, when so impeached, the burden of proof is on the defendant." A plea not distinguishable from this plea, in form and substance, was held good in Giles v. Williams, 3 Ala. 316,-an action on a sealed instrument, the consideration of which may be impeached by plea. Code, § 2667. And it was said this form of pleading resulted from the statute. If there was an absence of consideration to support the contract, there were no special circumstances to aver. The plea was of necessity negative, for it was not possible to state that affirmatively which had no existence. It is not, as is suggested by counsel, a conclusion, but a fact, which the plea avers as the matter of defense,-a fact of which the defendant must make proof. The test of the sufficiency of a plea in abatement or in bar of a suit is whether the facts are so stated that a material issue may be taken thereon. If the facts are so stated, however informal the plea may be, it is not subject to objection. Code, § 2674. The general replication would have put in issue the truth of the plea, compelling the defendant to disproof of a valuable consideration, which the writing imports; or, if there was a valuable consideration, its existence was matter which could have been averred in a special replication, on which the defendant must have taken issue. A material issue could have been formed on the plea, and, of consequence, it was not subject to demurrer. The cases of Insurance Co. v. Moog, 78 Ala. 284; Carmelich v. Mims, 88 Ala. 335, 6 So. 913; Darby v. Bank, 97 Ala. 653, 11 So. 881; McAfee v. Iron Co., 97 Ala. 709, 11 So. 881,-to which we are referred, are not opposed to this conclusion. The pleas in these cases were apparently intended, and were so deemed by the court, as "pleas in short by consent," the consent not having been obtained. No one of them contained an averment of the issuable fact found in the present plea,-a want of consideration for the contract on which the suit was founded.

2. The third and fourth pleas, the remaining pleas, the demurrers to which were overruled, may properly be considered in connection. Substantially, these pleas aver, as matter of defense, that, before the expiration of two years from the making of the agreement, the plaintiff had voluntarily surrendered to the company issuing them the 10 shares of corporate stock, the...

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15 cases
  • Russell v. Bush
    • United States
    • Supreme Court of Alabama
    • 10 Febrero 1916
    ......Co. v. Moog, 78. Ala. 284, 301, 56 Am.Rep. 31, to which may be added. Tennessee, etc., Co. v. Herndon, 100 Ala. 451, 456,. 14 So. 287; Kolsky v. Enslen, 103 Ala. 97, 100, 15. So. 558; Johnson v. Ry. Co., 104 Ala. 241, 16 So. 75, 53 Am.St.Rep. 39; Lawton v. Ricketts, 104 Ala. 430, ......
  • Fidelity & Cas. Co. of New York v. Raborn, 1 Div. 958
    • United States
    • Supreme Court of Alabama
    • 25 Marzo 1937
    ...... been made by the defendant." The use of the words. "valid consideration" justified the sustaining of. demurrer thereto. In Kolsky v. Enslen, 103 Ala. 97,. 15 So. 558, and Giles v. Williams, 3 Ala. 316, 37. Am.Dec. 692, the pleas were that the agreement is without. ......
  • Bank of Loretto v. Bobo, 8 Div. 31
    • United States
    • Alabama Court of Appeals
    • 17 Marzo 1953
    ...Such plea is good under our statutes and decisions, and is not subject to demurrer. Giles v. Williams, 3 Ala. 316; Kolsky v. Enslen, 103 Ala. 97, 15 So. 558; Armstrong v. Walker, 200 Ala. 364, 76 So. 280. The lower court did not err in this ruling on said Assignment of error number 2 assert......
  • U.S. Nat. Bank of Red Lodge v. Chappell
    • United States
    • United States State Supreme Court of Montana
    • 24 Noviembre 1924
    ...a conclusion, but a fact, which the plea avers as the matter of defense; a fact of which the defendant must make proof.” Kolsky v. Enslen, 103 Ala. 97, 15 So. 558. In Miller v. Brumbaugh, 7 Kan. 343, Mr. Justice Brewer, speaking for the court, said: “The answer denies that value was receive......
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