Meyer Bros. Drug Co. v. Puckett

• Decision Date: 21 January 1904
• Citation: 35 So. 1019,139 Ala. 331
• Parties: MEYER BROS. DRUG CO. v. PUCKETT.
• Court: Alabama Supreme Court

35 So. 1019

139 Ala. 331

MEYER BROS. DRUG CO. v. PUCKETT.

Supreme Court of Alabama

January 21, 1904

Appeal from Circuit Court, Jackson County; J. A. Bilbro, Judge.

Action by P. C. Puckett against the Meyer Bros. Drug Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by the appellee, P. C. Puckett, against the Meyer Bros. Drug Company, to recover the price of articles sold by the plaintiff to the defendant.

The defendant pleaded the general issue and the following special pleas: "(2) The defendant bought from the plaintiff pinkroot, which is a very valuable article, and the plaintiff fraudulently shipped defendant twinleaf root, which is of very little value, in lieu thereof. (3) The plaintiff contracted to sell the defendant pinkroot, and falsely sent to Sulzer Bros., in Madison, Ind., and bought twinleaf root and had the same shipped to him at Woodville, Ala., as twinleaf root, and reshipped it to defendant at St. Louis Mo., for pinkroot. (4) Plaintiff seeks to recover an account from defendant in this case for 1,943 pounds of twinleaf root, which was shipped to defendant as pinkroot, and which defendant refused to accept because it was not what was ordered by defendant. (5) The defendant, as defense to the action of the plaintiff, says that at the time said action was commenced the plaintiff was indebted to the defendant in the sum of $209.08 for this: On the _____ day of _____, 1899 plaintiff shipped defendant 1,604 pounds of twinleaf root for pinkroot, for which defendant paid plaintiff $192.48. The two roots resemble each other very much in appearance, and defendant received the same by its agents or clerks, and because of the similarity of the two roots, and not making a close examination of the article at that time, did not discover the fraud until about the 1st of January, 1900, when it promptly offered to rescind the sale. Defendant offers this as a set-off. (6) The defendant, as a defense to the action of the plaintiff, says that at the time said action was commenced plaintiff was indebted to defendant in the sum of $16.60 for the freight paid by defendant on the goods the price for which plaintiff sues, and the further sum of $209.08 paid plaintiff for 1,604 pounds of pinkroot bought from him on the _____ day of _____, 1899, but instead thereof plaintiff sent defendant twinleaf root, and defendant offers said sum as a set-off against plaintiff's demand. (8) Defendant, for answer to the complaint, says: That plaintiff was indebted to defendant in the sum of $16.60 for this: At the commencement the goods were sold by plaintiff to defendant to be delivered at St. Louis, Mo., and shipped from Woodville, Ala., by railroad. The plaintiff was to pay the freight on the same, and defendant paid the same, $16.60, at the instance and request of plaintiff; and defendant offers the same as a set-off against the claims of the plaintiff and claims judgment for the excess. (9) Defendant also says that at the commencement of the suit plaintiff was in debt to defendant in the sum of $128.32, for this: On the 4th day of October, 1899, defendant bought from plaintiff 1,604 pounds of pinkroot, to be delivered in St. Louis, Mo., by plaintiff to defendant. Plaintiff, instead of sending to defendant pinkroot, substituted twinleaf root, and defendant stored the same away, and did not discover then that it was not pinkroot, and paid for same, but afterwards discovered that it was not what was ordered, and offered to return the same to plaintiff. The said twinleaf root was worth only 4 cents per pound, and pinkroot was worth 12 cents per pound--what defendant paid for goods sent. Defendant offers the difference in value as a set-off, and claims judgment for the excess. (10) Defendant, for answer to the complaint, says that the plaintiff claims an account from defendant for 2,000 pounds of pink root to be delivered by plaintiff to defendant in St. Louis, Mo. When the goods reached defendant, it was ascertained that they were not pinkroot, but twinleaf root. Pinkroot was worth 12 cents per pound, and twinleaf root was worth only 4 cents per pound; and defendant claims a rebate on the price of 8 cents per pound. Defendant refused to accept and pay for the goods because they were not what was ordered by defendant from plaintiff."

The plaintiff demurred to the fifth plea upon the following grounds: (1) That it does not set up any facts showing that the fraud was perpetrated by plaintiff upon the defendant, or that the plaintiff made any false or fraudulent representations; (2) that the allegations of fraud were mere conclusions of the pleader. To the sixth plea the plaintiff demurred upon the following grounds: (1) It does not show that the freight claimed therein was paid for the plaintiff or at his instance and request. It is not shown that the defendant returned or offered to return the twinleaf root to plaintiff. (3) It does not show whether the money averred to have been paid by defendant was paid before the goods were received or after they were received. Plaintiff's demurrers to the fifth and sixth pleas were sustained. Upon motion of the plaintiff, the court struck the tenth...