Louisville & N.R. Co. v. Buffington

• Decision Date: 23 January 1902
• Citation: 131 Ala. 620,31 So. 592
• Parties: LOUISVILLE & N. R. CO. v. BUFFINGTON.
• Court: Alabama Supreme Court

31 So. 592

131 Ala. 620

LOUISVILLE & N. R. CO. v. BUFFINGTON.

Supreme Court of Alabama

January 23, 1902

Appeal from circuit court, Conecuh county; J. C. Richardson, Judge.

Action by J. J. Buffington against the Louisville & Nashville Railroad Company. From a judgment overruling defendant's demurrer to plaintiff's replication, defendant appeals. Affirmed.

This was a suit brought by the appellee against the Louisville &amp Nashville Railroad Company, in which the plaintiff sought to recover from the defendant $67.70. The complaint contained the common counts. The defendant pleaded the general issue and the following special plea of set-off: "(2) And for further answer to the complaint defendant says, as a defense to the action of the plaintiff, that at the time said action was commenced the plaintiff was indebted to it in the sum of to wit, about $125, which said amount had been collected by plaintiff while acting as agent of defendant, and which it was the duty of the plaintiff to pay over to defendant, and which he has failed to do, which said amount defendant offers to set off against the demand of plaintiff pro tanto, and claims judgment for the excess." To the second plea the plaintiff filed the following replication: "Comes the plaintiff by attorneys, and, as to the second plea of defendant, plaintiff saith that he, by reason of anything by the said defendant in that plea above alleged, ought not to be barred from having and maintaining his said action thereof against him, because he saith that he was not nor is indebted to the said defendant in manner and form as the said defendant hath in its said second plea alleged. And plaintiff avers that on, to wit, the 4th day of February, 1895, he was the agent of defendant at Castleberry, Alabama, and there came into his hands, as agent of said defendant on the date aforesaid, one hundred and twenty-five dollars. After the train had gone on which it was his duty to remit said sum of money aforesaid to defendant, and having no opportunity to remit said sum aforesaid on said day aforesaid to said defendant after said money came into his hands, plaintiff did, on, to wit, the 4th day of February, 1895, place the said sum of money in an iron safe which he found in defendant's office at Castleberry, Ala., when plaintiff took charge of said office as agent of defendant, and in which he as agent kept all money of defendant until he had an opportunity of remitting same to defendant; and plaintiff says that after placing said package in said safe he locked the door of said safe, and on leaving his office at the end of the day the said sum of money aforesaid was in said locked safe, and plaintiff fastened the windows and locked the door of said...