Montgomery Furniture Co. v. Hardaway

• Decision Date: 21 June 1894
• Citation: 16 So. 29,104 Ala. 100
• Parties: MONTGOMERY FURNITURE CO. v. HARDAWAY ET AL.
• Court: Alabama Supreme Court

16 So. 29

104 Ala. 100

MONTGOMERY FURNITURE CO. v. HARDAWAY ET AL.

Supreme Court of Alabama

June 21, 1894

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Action of assumpsit by Hardaway and Covington against the Montgomery Furniture Company to recover balance of purchase price of chattels. Judgment was rendered for plaintiffs, and defendant appeals. Affirmed.

The complaint contained the common counts of assumpsit, and also the following special count: "Plaintiffs claim of the defendants the further sum of two hundred and twenty-two and 50-100 dollars, for that heretofore, to wit, on the 20th day of September, 1892, plaintiffs sold to defendants one pair of bay horses for the agreed sum of $365, to be paid in the following manner, to wit, $300 in cash, and for the remaining $65 defendants were to deliver to plaintiffs a mule, which plaintiffs agreed to take at the said sum of $65, and in lieu thereof. That according to the terms of said sale, said horses were delivered on said 20th day of September for and on account of defendants, but with the understanding and agreement by and between plaintiffs and defendants that said horses were to remain subject to the payment of said purchase price, as aforesaid, which was by said agreement to be paid on the 1st day of October following, and that from 20th day of September to said first day of October, plaintiffs were to pay for the keep of said horses, but that said horses, were to be at the risk of defendants, and to remain only subject to plaintiffs' lien for said purchase price. That on said 1st day of October, plaintiffs demanded of defendants said sum of $300, and said mule. That in response to said demand defendants not paying as aforesaid, it was agreed, then and there, between plaintiffs and defendants, that plaintiffs would give further time, and until the Monday following for the payment of said purchase price, and that the defendants would pay the keep of said horses, however, from said 1st day of October. That on said Monday defendants refused to pay said purchase price or any part thereof. That plaintiffs have paid out a large sum to said William Trimble for the keep of said horses, since said 1st day of October, to wit, $25, for and on account of defendants. That because of the continued failure and refusal of said defendants to pay said purchase price and said board, or any part thereof, plaintiffs, after due notice to defendants, sold one of the pair of said horses for account of defendants, on to wit, the 12th day of November, 1892, for the sum of $165, and credited said amount on said keep and purchase price. And plaintiffs aver that defendants failed and refused to pay said purchase price and keep, or any part thereof, and still do refuse to pay the same, and that no part thereof has been paid, excepting said sum of $165, as aforesaid; wherefore plaintiffs sue to recover the balance due on said purchase price and keep, with interest thereon." The defendants demurred to the complaint on the following grounds: "(1) That said complaint shows it to be an action in assumpsit for the agreed price. (2) That said complaint shows that plaintiffs reclaimed possession of said property, and cannot maintain an action of assumpsit." This demurrer was overruled, and defendants excepted. The defendants pleaded: "(1) That they did not owe plaintiffs anything. (2) That they never purchased, nor contracted for the purchase of a horse, or pair of horses from plaintiffs. (3) That William O. Burks is only a special agent of defendants, for the purpose of selling furniture and of collecting the money thereon, and had no authority to contract any debt for the company without their approval. And that plaintiffs dealt with said Burks. (4) That the said William O. Burks was never authorized to purchase, or to agree to purchase, from the said plaintiffs a horse, or a pair of horses, for the use of the said Montgomery Furniture Company. And that said plaintiffs dealt with said Burks. (5) That the said plaintiffs never delivered to the defendants any pair of horses. (6) That they are not guilty of the matters alleged in the complaint in said cause. (7) That no title ever passed out of the said plaintiffs in and to the horses alleged to have been sold to defendants. (8) That since the first day of October, 1892, the said plaintiffs have exercised acts of ownership over the said horses in question. (9) That before the Monday referred to in the complaint, as an extension of time, one of the horses died, and that plaintiffs could not and did not deliver a pair of horses on said day, and therefore, defendants declined payment. (10) That plaintiffs guaranteed said horses to be in sound bodily condition at the time of the date alleged as a day of delivery, to wit, October 1, 1892, and defendants allege that one of the horses died on October 2d and was not of said condition on the 1st day thereof." The plaintiffs moved to strike the fifth and eighth pleas from the file, which motion was granted, and the defendants duly excepted. To the ninth plea the plaintiffs demurred on the following grounds: "(1) Said plea is not responsive to the complaint, and sets forth no fact or facts that are defensive or material to the allegations of said complaint. (2) That said plea is insufficient in failing to set forth any state of facts showing that delivery was necessary to the passing of the title from plaintiffs to defendants of the pair of horses named in the complaint." This demurrer was sustained, and the defendants excepted. To the third and fourth pleas the plaintiffs filed the following replications "That they did not deal and contract with the said Wm O. Burks, but they contracted with him as the duly-authorized agent of defendants in the premises as far as these plaintiffs were concerned." To the tenth plea the plaintiffs replied: "That they admit, as alleged in said plea, that they did warrant said horses to be in a sound bodily condition, but they deny, as alleged therein, said horses were not in said condition." The plaintiffs took issue on the first, second, sixth, and seventh pleas, and issue was also joined on the replications of the plaintiffs to the defendants' remaining pleas.

J. H Hardaway, one of the plaintiffs, testified, that the defendant company was at the time of the transaction, before that, and at the trial, doing business in Montgomery, under the name of the Montgomery Furniture Company, dealing in furniture; that they had a large storehouse on Commerce street in said city, to which customers were invited, and they employed several clerks in the conduct of their business; that W. O. Burks was the agent and manager of said business, and the members composing said company, which was a partnership, resided in Baltimore, Md. The witness further stated that he knew the general character and nature of said business as carried on by the defendants, and that it was usual and customary in carrying on such business to use furniture wagons and horses or mules for the purpose of delivering furniture to their customers; that a short while before the 20th of September, he proposed to said Burks to sell him said horses for the defendants, for the sum of $400, and Burks declined to submit the proposition to his principals in Baltimore at that price, as he thought the price was too high; that a day or two afterwards, witness had another interview with said Burks, and submitted to him another proposition, which was to sell the horses for $375, which proposition said Burks also declined to submit to defendants, or "his house," as he expressed it, but made witness a counter proposition, or offer, viz., $300 and a mule then owned by and used in the business of defendants in the city of Montgomery; that witness refused this proposition, but, in a day or two thereafter, and after consulting his partner, witness told Burks he had concluded to accept his offer, to which Burks replied, he would have to submit the matter to "his house" for their approval, and he would write to them at once. This conversation was a day or two before the 10th of September, 1892. Witness further testified, that he did not close any trade with said Burks for the horses, but that his partner, Mr. Covington, made the final agreement with him on or about the 20th September, and reported that he had sold the horses to defendants, but that they (plaintiffs) would have to pay the board of the horses until the 1st of October following, as defendants had no use for the horses until that time; that witness, after 20th September, met Burks, and told him that he had the opportunity to hire out the horses, and asked him if he had any objections, and he replied he did not, as he thought light work would benefit them; that, on the 1st of October, witness went to the store of defendants, to collect the purchase money for the horses, it being Saturday morning, about 9 o'clock, and he there met Burks, who invited him to the office of the store, and said he would pay him the money, but when they arrived in the office, after looking over his cashbook, told the witness that he did not have money enough in his cash drawer to pay him, and that it was against the rules of the house to check out of the bank, and asked witness to wait until the following Monday for his money, as Saturday was his collection day, and he would by that time have money enough on hand. Witness agreed to wait until Monday for his money, but told Burks defendants would have to pay for the board of the horses from Saturday to Monday, which he agreed to pay. Said Burks then asked witness if he would loan him the mule for two days, until he could get his wagon and harness out of the shop. And to this witness assented. On the following Monday morning, witness was informed one...