Malone-Beall Mercantile Co. v. Greer

• Decision Date: 24 November 1910
• Citation: 169 Ala. 543,53 So. 810
• Parties: MALONE-BEALL MERCANTILE CO. v. GREER.
• Court: Alabama Supreme Court

53 So. 810

169 Ala. 543

MALONE-BEALL MERCANTILE CO. v. GREER.

Supreme Court of Alabama

November 24, 1910

Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.

Action by P. E. Greer against the Malone-Beall Mercantile Company for breach of contract. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Count 3 sets up a contract by which the defendant corporation agreed to pay plaintiff 80 cents on the dollar of the invoice charge for plaintiff's stock of goods at Slocomb, Ala., and $800 for plaintiff's warehouse in Slocomb, and to pay plaintiff the sum of $60 per month, during so many months of the year 1906 as might be necessary for him (plaintiff) as an employé of the defendant to make sales of fertilizers to customers of the defendant, and to take notes therefor, and to pay to plaintiff on December 1, 1906, 12 1/2 per cent. on the cash price of goods sold to the following named persons who had been customers of plaintiff for merchandise during the year 1905. Here followed a lot of names of the customers. It is then averred that defendant agreed to carry out plaintiff's contract with the Savannah Guano Company for the purchase of fertilizers during the year 1906, and that defendant further agreed with plaintiff to sell to plaintiff's said customers diamond cotton food guano at $22.50 per ton, and 8--4 compound, a phosphate, for $18.50 per ton. It is also averred that plaintiff was to discontinue the fertilizer and mercantile business and work for defendant as hereinafter stated. The breaches alleged are refusal to pay plaintiff the profits on the fertilizer sold as agreed as well as the 12 1/2 per cent. on the cash price of the goods and merchandise sold by it to plaintiff's customers above set out. It is then alleged how much fertilizer and how much goods were sold.

Pleas 3 and 5 are as follows: "(3) The defendant says that the contract declared on is void under the statute of frauds, in that as a parcel and part of the said contract the defendant agreed to become responsible to the Savannah Guano Company for a debt which the plaintiff was due the said company, and defendant avers that said promise was not in writing, nor was the consideration thereof in writing and signed by the defendant." "(5) That as a part and parcel of the contract sued on, and without which said contract would not have been made, and as an indispensable part thereof, the defendant promised the plaintiff to pay a certain debt which the plaintiff owed the Savannah Guano Company, and said promise was not in writing, nor was the consideration thereof expressed in writing and signed by the defendant, and therefore said contract was void."

Espy &amp Farmer, for appellant.

A. E Pace and W. L. Lee, for appellee.

EVANS J.

Plaintiff in the court below sued defendant upon a verbal contract, which plaintiff alleged had been entered into between plaintiff and defendant. There were originally two counts to the complaint, but demurrers were sustained to these counts, and count 3 was added by way of amendment. Upon this count the case was tried. There were six pleas filed to count 3. Demurrers were sustained to pleas 3 and 5. The appellant here, defendant below, now assigns as error the ruling of the trial court in sustaining the demurrers to pleas 3 and 5, and the refusal of the court to give written charges numbered 1, 2, 3, 4, and 5 requested by defendant.

Plea 5 was clearly subject to the demurrer interposed by plaintiff. The contract set up in the complaint, and that part of the contract set up in plea 5, showed not a contract, or "special promise, to answer for the debt, default, or miscarriage of another," but a contract by defendant to pay the debt, which he contracted with plaintiff, in a...