Lawton v. Ricketts

Citation104 Ala. 430,16 So. 59
PartiesLAWTON ET AL. v. RICKETTS.
Decision Date21 June 1894
CourtSupreme Court of Alabama

Appeal from district court, Lauderdale county; William P. Chitwood Judge.

Action by Frank M. Ricketts against Sarah A. Lawton and B. A. Lawton on a promissory note. A demurrer to defendants' answer was sustained, and defendants appeal. Affirmed.

The defendants pleaded the following pleas: "(1) Come the defendants, and for plea in this behalf say that the plaintiff is indebted to them in the transaction for which that note was given in the sum of $2,000, with which sum they offer to recoup the said demand. (2) Come the defendants, and for plea in this behalf say that the said note for $1,000 sued on was the consideration as a part of the purchase of an undivided one-half interest in a livery and sale stable in the city of Florence, Ala., and that as an inducement to defendant to purchase the same the plaintiff represented that the undivided one-half interest owned by one C. S. Wilson his partner in business, was unincumbered when the same was in fact mortgaged to plaintiff, by reason of which misrepresentation and fraud defendants were damaged in the sum of $2,500, with which they offer to recoup plaintiff's said demand. (3) Come the defendants in the above-styled cause, and for plea in their behalf say, that the said note of one thousand dollars sued on was given the plaintiff, F. M. Ricketts, in part payment of an undivided one-half interest in a livery stable business in the city of Florence, conducted by the plaintiff and one C. S. Wilson under the firm name and style of Ricketts & Wilson. And the said defendants say that the said undivided one-half interest had then been recently sold the said C. S. Wilson by the plaintiff, and that the said purchase of the said defendants was made on the expectation and with the intention of forming a partnership with said C. S. Wilson under the firm name and style of C. S. Wilson & Co., and continuing the common ownership of the said property, and conducting the said business together, all of which was known to plaintiff. and as an inducement to the defendants to purchase the undivided one-half interest in the said livery stable business, the said plaintiff represented to the defendants that the undivided one-half interest of said C. S. Wilson was fully paid for and that it was free and clear of all incumbrance without which said representation defendants would not have purchased the said undivided one-half interest in the said business, and so informed the said plaintiff before purchasing the same. But defendants allege that the undivided one-half interest owned by the said Wilson was then incumbered by a chattel mortgage on the said one-half interest for the sum of $2,500 given by the said C. S. Wilson to the plaintiff for the purchase price of the same. Of the existence of such incumbrance the defendants had no notice until about the 1st of May, 1892. And defendants say that by reason of the existence of the said incumbrance they have lost the sum of $700 due and owing to them by the said C. S Wilson on Settlement of the partnership affairs of said firm of C. S. Wilson & Co. And that by reason of the existence of the said mortgage and the insolvency of the said C. S Wilson, who had no other property of any value, which fact was well known to the plaintiff, they became and are liable for the payment of the entire indebtedness of the firm of C. S. Wilson & Co., to their damage $1,000. And defendants say that by reason of the existence of said incumbrance, and the fraud and deception in connection therewith practiced by the plaintiff, they have become involved in expense and litigation, and the said business has been thrown into the hands of a receiever by whom the entire property embraced in the said business was sold at public auction at a ruinous sacrifice, to the damage of defendants in the sum of $2,500. With all which said sums of money defendants offered to recoup plaintiff's demand.' The plaintiff demurred to these said pleas as follows: To the first plea on the following grounds: "(1) That the plea filed does not set forth the facts out of which defendants' claim as therein set forth arose. (2) That the plea is vague and indefinite. (3) That the plea does not set forth any facts upon which an issue can be joined. (4) That the plea does not inform the plaintiff of the claim defendants offer to recoup." The grounds of demurrer to the second plea were as follows: "(1) That the damages the defendants offer to recoup against the plaintiff's demand are not the direct and proximate results of the alleged injury. (2) That the damage that the defendants offer to recoup are remote, speculative, contingent, and are such as cannot be measured. (3) That the claim...

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24 cases
  • Russell v. Bush
    • United States
    • Supreme Court of Alabama
    • February 10, 1916
    ...... 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, 436, 16 So. 59; St. Louis, etc., Co. v. Phillips, 165 Ala. 504, 51 So. 638; Mobile Elec. Co. v. Sanges, 169 Ala. ......
  • Ewart Lumber Co. v. American Cement Plaster Co.
    • United States
    • Alabama Court of Appeals
    • May 1, 1913
    ...... and referred to in one ground of the motion as though it were. a plea of set-off and in another as though it were one of. recoupment. Lawton v. Rickett, 104 Ala. 430, 16 So. 59. These three grounds mentioned of the motion, based as. said on the alleged errors of the court in excluding ......
  • Craft v. Standard Accident Ins. Co.
    • United States
    • Supreme Court of Alabama
    • April 25, 1929
    ...... violated some duty which the law imposes on him in the making. or performance of the contract." Lawton v. Ricketts, 104 Ala. 430, 16 So. 59; Carolina-Portland. Cement Co. v. Alabama Const. Co., 162 Ala. 380, 52 So. 332; Merchants Bank v. Acme Lumber ......
  • Zimmern v. Standard Motor Car Co.
    • United States
    • Supreme Court of Alabama
    • April 21, 1921
    ......Co. v. Brannen, 138 Ala. 157, 163, 35 So. 56; Moulthrop &. Stevens v. Hyett & Smith, 105 Ala. 493, 496, 17 So. 32,. 53 Am.St.Rep. 139; Lawton v. Ricketts, 104 Ala. 430,. 436, 16 So. 59; Reed Lbr. Co. v. Lewis, 94 Ala. 626,. 628, 10 So. 333. . . The. custom of defendant's ......
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