Mertins v. Hubbell Pub. Co.

• Decision Date: 07 November 1914
• Docket Number: 123
• Citation: 67 So. 275,190 Ala. 311
• Parties: MERTINS v. HUBBELL PUB. CO.
• Court: Alabama Supreme Court

67 So. 275

190 Ala. 311

MERTINS v. HUBBELL PUB. CO.

No. 123

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Assumpsit by the Hubbell Publishing Company against Gustave F. Mertins. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals. Affirmed.

For former appeal in this case, see 4 Ala.App. 500, 58 So. 679 where the facts are set out.

G.F Mertins and Hill, Hill, Whiting & Stern, all of Montgomery for appellant.

Ball & Samford, of Montgomery, for appellee.

SAYRE J.

Demurrer to plea 3 was sustained. The plea was that the original contracts sued upon were void for want of consideration. The complaint contained two of the common counts. These were based upon express or implied promises to pay money in consideration of a precedent and existing debt, and showed therefore an executed consideration. The other counts showed a case of mutual promises, each furnishing a sufficient consideration to support an action upon the other. So, at best, this plea did no more than deny plaintiff's cause of action, which was elsewhere done in proper form, and upon the issue thus made up the case was tried. Plaintiff's proof of its case was furnished in evidence, tending to show that it published a legal directory in which appeared according to contract, a card advertising defendant's business. These facts were not denied, and on them, without more, plaintiff was entitled to judgment for the contract price. Evidence that the advertisement was of no value to defendant, brought him no business so far as he knew, did not at all tend to impeach the legal sufficiency of the consideration for his original promise to pay. That consideration was plaintiff's promise to print and defendant's legal right to an enforcement of that promise. "The question of the ultimate financial loss or gain is foreign to the doctrine of consideration, if the parties each have received what they have agreed upon." 1 Page, Conts. § 274. If by this plea defendant sought to open the way for proof that the contract was forbidden by statute in certain existing conditions, or was unenforceable because procured by fraud (matters defendant sought to set up in other pleas to which demurrers were sustained) evidence along those lines would not have tended to prove that defendant's promise was wholly without consideration in that plaintiff had given or promised nothing at all (a defense for the statement of which the plea in question may have been sufficient under the authority of Milligan v. Pollard, 112 Ala. 465, 20 So. 620), nor that plaintiff's promise was wholly void because morally bad or prohibited by law under all circumstances whatever. Such evidence would have tended only to prove that under special circumstances, not ordinarily to be presumed, plaintiff...