Manier v. Appling

• Decision Date: 25 November 1896
• Parties: MANIER ET AL. v. APPLING.
• Court: Alabama Supreme Court

20 So. 978

112 Ala. 663

MANIER ET AL. v. APPLING.

Supreme Court of Alabama

November 25, 1896

Appeal from circuit court, Walker county; James J. Banks, Judge.

Action by I. W. Appling against Manier & Co. There was a judgment for plaintiff, and defendants appeal. Reversed.

The complaint contained two counts, the allegations of which as to the agreement sued upon are sufficiently stated in the opinion. Each of these counts of the complaint was demurred to upon the ground, among others, that they did not sufficiently set forth the plaintiff's cause of action or inform the defendants what plaintiff relied upon as constituting the agreement, or the breach thereof. These demurrers were overruled, and the defendants duly excepted. Trial was had upon issue joined upon the plea of the general issue. There was no conflict in the evidence, and it was shown that on May 6, 1895, the plaintiff, who was a merchant in Walker county, Ala., gave to one W. H. Daniels, who was the traveling salesman or drummer for the defendants, an order for 865 pairs of shoes, to be shipped on June 15, 1895 and that, thereupon, Daniels took down said order in writing and furnished plaintiff a duplicate thereof, which the plaintiff introduced in evidence. This order, as introduced in evidence, was an order from the defendants to ship to the plaintiff, at his place of business in Walker county, the shoes; setting out the kinds, sizes, numbers wished, and also the terms upon which the sale was made. It was further shown that, on the day of making the order, Daniels mailed the original to the defendants; that a few days thereafter the plaintiff received from the defendants a postal card acknowledging the receipt of said order, and stating that "the same shall have prompt attention." The plaintiff never received the goods, and wrote to the defendants, asking why the shoes had not been shipped. He received a reply, in which the defendants declined to ship said goods, whereupon he wrote a second time, insisting that the goods be shipped to him, but again received a reply from the defendants declining the order. It was shown that Daniels was the duly appointed and authorized traveling salesman of the defendants. Upon the examination of Daniels as a witness the defendants asked him whether or not he had corresponded with them in reference to their failing to fill the order of the plaintiff, and, upon his answering in the affirmative, they offered to introduce in evidence a letter from Daniels in which he asked them to fill the order, and also a letter directed to Daniels from the defendants, in which they declined. The plaintiff objected to the introduction in evidence of these letters. The court sustained the objection, and the defendants excepted. It was shown that the defendants were wholesale merchants in Nashville, Tenn., and that it was the custom of wholesale merchants in Nashville, and it was known to their customers, that all orders were taken subject to their approval. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the general affirmative charge in his behalf. To the giving of this charge the defendants duly excepted, and also excepted to the court's refusal to give the general affirmative charge asked by them. There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

Appling, McGuire & Appling, for appellants.

Coleman & Bankhead, for appellee.

BRICKELL C.J.

The complaint contains two counts. The first alleges an agreement made by the defendants to sell and deliver to the plaintiff at a specified place, "a lot of shoes, to wit, 865 pairs, for which plaintiff promised to pay, which said lot of shoes defendants failed to sell and deliver." The second count alleges an agreement by which the defendants "promised to sell to plaintiff a lot of merchandise, consisting of 865 pairs of shoes, for which plaintiff promised to pay, which said lot of merchandise defendants failed to sell." The defendants demurred to the entire complaint, and to each count, assigning numerous causes. It would serve no useful purpose to notice the causes of demurrer separately. The more material are directed to the inquiry whether either count states with sufficient certainty the promise or agreement of the defendants alleged to have been broken. In actions of assumpsit, at common law,-and the present action corresponds to the action of assumpsit,-the general rules of pleading require that the contract and its consideration must be fully stated. 1 Chit. Pl. (16th Ed.) 277. The author says further: "All those parts of the contract which are material for the purpose of enabling the court to form a just idea of what the contract actually was, or which are necessary for the purpose of providing the jury with a criterion in the assessment of damages, should be stated with certainty and precision." Id. 310. Applying these rules, each count of the complaint is insufficient in its description or statement of the agreement of the parties....