Page & Jones v. Barry

• Decision Date: 16 November 1916
• Docket Number: 1 Div. 928
• Citation: 73 So. 22,197 Ala. 449
• Court: Alabama Supreme Court
• Parties: PAGE & JONES v. BARRY.

73 So. 22

197 Ala. 449

PAGE & JONES v. BARRY.

1 Div. 928

Supreme Court of Alabama

November 16, 1916

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Suit by E.T. Barry against Page & Jones. From a judgment for plaintiff, defendants appeal. Transferred from the Court of Appeals under Act of April 18, 1911, p. 450, § 6. Affirmed.

Inge &amp McLeod, of Mobile, for appellants.

Palmer Pillans, of Mobile, for appellee.

MAYFIELD J.

Appellee sued appellants to recover $316.32. The first four counts were the common counts in Code form; and the fifth and sixth in special assumpsit.

The fifth count contains, among others, the following allegations, which raise the material issues:

"In November, 1910, and for several years subsequent thereto, the plaintiff was an agent for the Union Marine Insurance Company, Ltd., and had engaged the defendants to act as subagents for the sale of maritime insurance by said company at Mobile. And plaintiff avers that his instructions to the defendants were to collect the premiums accruing on any certificate of insurance upon delivery of such certificate to the party purchasing same, and advised defendants that he would look to them for payment of any premiums earned but not collected by reason of their failure to collect same upon delivery of the certificate. And plaintiff further avers that the said Union Marine Insurance Company held him (plaintiff) responsible for any such uncollected premiums, and required him to pay them, and that defendants were advised of this fact. But so it is, as plaintiff avers that the defendants, contrary to plaintiff's instructions in the premises, delivered sundry certificates of insurance to persons purchasing them, without collecting the premiums, and that neither plaintiff nor defendants have ever been able to collect the said premiums. And plaintiff avers that the persons to whom said certificates were delivered, and the amount of premiums earned and due on same are as follows," etc.

The count, continuing, sets out a number of items, and concludes by averring demand, and failure to pay.

The sixth count is practically the same as the fifth, with the additional averment that plaintiff had been compelled to pay the amount sued for to the Union Marine Insurance Company, and that he therefore sued to recover the amount from defendants who were primarily liable therefor. The trial was had on the general issue, payment, the statute of limitations of three years, and one plea setting up a waiver of the instructions of plaintiff to defendants as alleged above, and, lastly, a plea of accord and satisfaction. The trial resulted in a verdict and judgment for plaintiff, and defendants appeal.

The evidence of plaintiff, if true, supported the verdict and judgment; and that of the defendants tended to deny liability. There are many assignments of error as to rulings on evidence that need not be...