Phillips-Buttorff Mfg. Co. v. Wild Bros.

• Decision Date: 30 June 1905
• Parties: PHILLIPS-BUTTORFF MFG. CO. v. WILD BROS.
• Court: Alabama Supreme Court

39 So. 359

144 Ala. 545

PHILLIPS-BUTTORFF MFG. CO. v. WILD BROS.

Supreme Court of Alabama

June 30, 1905

Appeal from Circuit Court, Conecuh County; J. C. Richardson, Judge.

Action by the Phillips-Buttorff Manufacturing Company against Wild Bros., commenced before a justice of the peace, to recover the price of certain stoves sold by the plaintiff to defendant. A judgment was rendered in favor of defendant from which plaintiff appealed to the circuit court, in which plaintiff filed a complaint on a verified account for merchandise sold, and defendant pleaded the general issue and pleas of set-off. The counterclaims so alleged had accrued prior to the commencement of the account on which the present suit was founded, and, demurrers to the pleas being overruled, judgment was rendered for defendant, and plaintiff appeals. Reversed on rehearing.

W. H Wild, a member of defendant firm being introduced as a witness for defendants, testified that the defendants had purchased from plaintiff certain articles of merchandise under a guaranty that they would not break and would give satisfaction to customers; that defendants sold said articles under a like guaranty, and had to make repairs at their own expense and to retake others entirely, all of which articles had been paid for by defendants, and the articles so retaken by defendants were then held subject to plaintiff's order. The witness was asked by defendants' counsel "Was there any condition or agreement made by you with the agent or salesman of the plaintiff in regard to these stoves at the time you purchased them? Was there any guaranty at the time made you by him?" The plaintiff objected to these questions on the ground that the agent was not shown to have authority to make any guaranty and that the guaranty was not in writing. The objection was overruled, and plaintiff excepted. The witness answered in part: "Yes, sir; the agent from whom we bought them at the time of the purchase guarantied that the stoves would give entire satisfaction to our customers; and, in case they did not, we were to take them back and charge same to plaintiff." On cross-examination witness admitted the correctness of the account involved in the present suit, except the item for protest fees, and that with that deduction the amount shown should be subtracted from the sum due defendant by plaintiff on account of breach of guaranty. There was a judgment for defendants, and plaintiff appealed to the Supreme Court, assigning as error the failure of the court to sustain plaintiff's demurrers to defendants' pleas, and also the overruling by the court of plaintiff's objection to the question to the witness Wild, above set out, with reference to the guaranty made by plaintiff's agent at the time of the sale of a former bill of goods, out of which the offsets are said to have arisen.

James F. Jones, for appellant.

SIMPSON J.

The record in this case shows that the defendants by leave of the court amended their pleas, and issue was joined. No demurrers were filed to the pleas as amended, and the record does not show what the amendments were. Consequently this court...