Appeal
from City Court of Bessemer; William Jackson, Judge.
Action
by the Owensboro Wagon Company against John A. Hall. Judgment
for defendant. Plaintiff appeals, and defendant takes a
cross-appeal. Reversed and remanded.
The
complaint was originally on the common counts, and on the
second trial was amended by the addition of the sixth and
seventh counts, as follows:
"(6)
The plaintiff claims of the defendant the sum of ($670.00)
six hundred and seventy dollars by reason of a contract in
writing as follows:
"
'Owensboro, Ky. 3/7/1901. John A. Hall
Bessemer--Dear Sir: Respecting your request to handle our
wagons on consignment in Bessemer, Alabama, and vicinity
we shall be pleased to commission you as your orders may
be approved by us from time to time; proceeds of sale
less invoice price, to be your commission. In
consideration of our doing so, and extending you this
credit, we ask you to undertake and contract as follows:
"
'First. Of all goods, handle and sell ours to the
exclusion of all other makes.
"
'Second. Until goods consigned hereunder are sold,
diligently to do all business required to sell said
goods, pay all taxes, freight, and other expenses of
same, keep well housed and protected from the weather and
in good order. In case of loss by fire or damage or other
cause, pay us invoice price.
"
'Third. On the 1st of each month, and whenever
requested to do so by us or our authorized traveling
salesmen or collectors, to render a statement of all goods
on hand.
"
'Fourth. Invoice prices are to be mutually agreed upon
at the time orders are accepted for shipment.
"
'Fifth. For all sales, as soon as made, send us cash
less 5%, or your note for four months for the amount from
date of sale, with purchaser's note indorsed by you as
collateral security, if at any time your account exceeds
our limit of credit. The cash discount not to be allowed on
sales after 12 months from date of each invoice; all
remittances to be at invoice prices.
"
'Sixth. To the extent of invoice price, moneys,
proceeds, or securities taken or received by you on account
of goods shall be our property, received and held in trust
for us and kept by you as separate funds for us until goods
are settled for as above, and the title for all goods
shipped on this contract shall be and remain in our name,
until we receive settlement therefor.
"
'Seventh. You will, if demanded, purchase at invoice
price in cash or your four-months note, with interest at 8
per cent. until maturity, with approved collateral notes
attached, if requested, all goods unsold after 12 months
from date of each invoice, or at once in case you shall
sell or dispose of the merchandise business in which you
are engaged.
"
'Eighth. We can revoke this contract at any time if you
fail to discharge any obligations hereunder, or if we have
reason to believe you are unable to perform the same, and
upon the return of goods for any cause, termination or
revocation of this contract, you will deliver to us in your
town all our goods then on hand in as good condition as
when received, paying for any damage to same, free of all
charge. If, however, termination is made other than by
reason of your act or breach, we will pay actual freight,
which shall be a claim against us, subject to offset of any
claim we may have against you.
"
'Ninth. We deliver all goods free on board, Owensboro,
Ky., and will endeavor to ship by cheapest route, making
freight as low as possible, but will not be responsible for
any other charges.
"
'Tenth. Our failure to enforce at any time any
provision of this contract, or our exercising option,
hereby conceded, at any time for the time being to waive
performance on your part of any of the provisions hereof,
shall in no wise impair the validity of this contract or
such provision, or our right to enforce the same. If this
is satisfactory, please sign as indicated below, and return
to us, on receipt of which we will at this office
consummate same by our signature as a contract between us,
sending you a copy, which embodies our entire understanding
and cannot be modified, except by writing duly executed by
us. [ Signed] Owensboro Wagon Co., by B. M. Settle.
"
'The above is satisfactory. [ Signed] John A. Hall.'
"And
plaintiff avers that it made demand upon the defendant to
purchase all the unsold wagons then on hand on, to wit, the
6th day of May, 1902, and the defendant then and there
refused to do so.
"(7)
Plaintiff as part of this count adopts all the words and
figures of the sixth count hereof down to and including the
contract between the plaintiff and defendant therein set out,
and plaintiff avers that on the 9th day of December, 1901,
the plaintiff was informed that defendant had disposed of or
sold his mercantile business, and thereafter, to wit, on the
6th day of May, 1902, demanded that the defendant purchase
stock of wagons, etc., then in defendant's hands, as is
provided for in the seventh paragraph of said contract, and
the defendant then and there refused to purchase as provided
in paragraph 7 of this contract."
The
defendant interposed a motion to strike the last two counts,
because they are departures from the original complaint on
the common counts, and because the last two amendments fail
to aver or show any cause of action, and on various other
grounds not necessary to be set out. Demurrers were filed on
practically the same grounds. The court granted the motion,
and struck the sixth and seventh counts.
The
fourth plea filed by defendant sets up the contract set out
in the complaint, and avers that the account upon which this
suit is founded is for a lot of wagons shipped by plaintiff
under the conditions of the contract, and that long before 12
months expired next after the date of shipment of such wagon
the defendant resigned his agency under said contract,
offered to settle with plaintiff and deliver the unsold
wagons to plaintiff at Bessemer, Ala., and informed the
plaintiff that the wagons were there subject to his orders.
Said plea also contained an offer to settle and return the
wagons. The other acts of the court concerning this plea are
sufficiently set out in the opinion.
The
fifth special plea is as follows: "The defendant says
that said contract as set out in the defendant's fourth
plea was made and entered into with reference to and because
of the fact that the defendant was at that time engaged in a
mercantile business, as is shown by said contract in and by
section 7 thereof, which provides that the defendant should,
if demanded, purchase at invoice price in cash or his
four-months note, with interest at 8 per cent., with approved
collateral note attached, if requested, all goods unsold
after 12 months from date of each invoice, or at once in case
he sold or disposed of the mercantile business in which he
was engaged. And defendant avers that he disposed of the
mercantile business in which he was so engaged by selling the
same out in, to wit, the month of June, 1901, and promptly
thereafter gave the plaintiff notice of the fact that he had
disposed of his said mercantile business, and offered to turn
over to plaintiff all the goods and property he had received
from and was holding for it under said contract that had not
been disposed of, and also offered to turn over to plaintiff,
and did turn over to it, all money it was entitled to or that
was owing to it for goods of the plaintiff that had been sold
by the defendant under said contract, and he repeated such
offer and notice several times, which offer defendant avers
he is still ready and willing, and hereby offers, to still
carry out and perform. And defendant avers that the
plaintiff, therefore, had full notice of the fact about the
defendant having so disposed of his said business as
aforesaid, and that, notwithstanding this, the plaintiff
refused or declined to take the goods back, and refused or
declined to elect or require the defendant to purchase goods
which he so held for the plaintiff under said contract; but,
to the contrary, the plaintiff insisted in going on and did
go on treating the defendant as its agent under and according
to the terms of said contract, and the defendant also
accordingly went on as plaintiff's agent, handling its
property under said contract. Wherefore defendant avers that
plaintiff lost and waived its right to effectually elect,
require, or even demand that the defendant purchase said
goods or property, or even treat him as a purchaser, and by
reason thereof the plaintiff is estopped from demanding or
compelling the defendant in any sense to purchase said
property or any part thereof."
The
following demurrers were interposed to the fifth plea as
amended: "Because the plea does not aver that the
defendant accepted the agency and acted as such agent.
Because under the contract the plaintiff had a right to
decline to take the goods back. Because the averments of the
plea show that the defendant went on handling the goods,
wagons, etc., under the contract, thereby disaffirming the
establishment of an agency subsequent to the going out of
business by the defendant. Because the facts alleged in said
plea are insufficient to show that a new contract had been
created by the dealings of the parties subsequent to the
selling out by the defendant of its mercantile
business."
The
defendant filed the following plea as plea 7: "The
defendant says that the plaintiff, after the time when the
defendant sold and disposed of his mercantile business and
offered to return and pay for the goods as set up in the
defendant's fifth plea, the plaintiff understanding all
the circumstances, treated the defendant as...
