Miller v. Mutual Grocery Co.

• Decision Date: 27 November 1925
• Docket Number: 5 Div. 928
• Citation: 214 Ala. 62,106 So. 396
• Parties: MILLER et al. v. MUTUAL GROCERY CO.
• Court: Alabama Supreme Court

106 So. 396

214 Ala. 62

MILLER et al. v. MUTUAL GROCERY CO.

5 Div. 928

Supreme Court of Alabama

November 27, 1925

Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.

Action by the Mutual Grocery Company against J.B. and J.R. Miller with attachment in aid of suit. From a judgment for plaintiff, defendants appeal. Affirmed.

Grady Reynolds and Omar Reynolds, both of Clanton, for appellants.

L.F Gerald, of Clanton, and Mulkey & Mulkey, of Geneva, for appellee.

BOULDIN J.

Count 2 of the complaint is to recover amount due "for goods wares, and merchandise sold by plaintiff to the defendant or at their instance or request."

When liability is alleged on two or more grounds, stated in the alternative, the count is demurrable unless a good cause of action is shown under each alternative. Construed most strongly against the pleader, a sale at the "instance" of defendant may mean at his "solicitation" or "suggestion." Webster's International Dict.

Clearly a sale may be made to one person at the solicitation or on the suggestion of another, without the latter becoming the debtor. There must be a mutual agreement, express or implied that the relation of debtor and creditor exist.

This count also fails to name the person to whom the goods were sold at defendant's instance. Reasonable certainty, such as will advise the defendant of the particular transaction he is called upon to defend, is an elementary rule of pleading. Where one person is being sued for goods sold to another, the name of the purchaser should be shown. There was error in overruling the demurrer to this count.

Count 4, however, is "for goods, wares, and merchandise sold by the plaintiff to one W.L. Guin, at the instance and request of defendants, for which goods, wares, and merchandise the defendants, at the time of making such request as a part thereof, agreed to pay plaintiff." This count meets the objections to count 2. No question of its sufficiency is presented in argument.

Count 5 adopts all of count 4 and adds that at the time of the sale defendants, through B.P. Watson, their authorized agent, drew a demand draft on defendants, payable to plaintiff, for the price of the goods, which draft was duly presented and payment refused.

We construe this count as based upon the original cause of action, the price of goods sold, and not upon the unpaid and unaccepted draft, as in count 6. The added averments give further details of the transaction. The count as a whole alleges in effect that plaintiff sold the goods to Guin on defendants' request and agreement at the time that they would presently pay for the goods, and accordingly their agent, in his own name, drew a demand draft on defendants in plaintiff's favor, the payment of which was refused. Under this count defendants were the debtors.

The draft given as conditional payment being dishonored, the original cause of action remained. The demurrer thereto was properly overruled.

The record shows no demurrer to count 6. The appeal is upon the record only. There was no nonsuit for adverse rulings, but a trial upon issue joined with jury and verdict for plaintiff. There is no bill of exceptions, and...