Robinson v. Solomon Bros. Co., 5 Div. 168.

• Citation: 155 So. 553,229 Ala. 137
• Decision Date: 10 May 1934
• Docket Number: 5 Div. 168.
• Parties: ROBINSON v. SOLOMON BROS. CO.
• Court: Supreme Court of Alabama

155 So. 553

229 Ala. 137

ROBINSON v. SOLOMON BROS. CO.

5 Div. 168.

Supreme Court of Alabama

May 10, 1934

Rehearing Denied June 28, 1934.

Appeal from Circuit Court, Chilton County; F. Loyd Tate, Judge.

Action in assumpsit by Solomon Bros. Company against W. C. Robinson doing business as Robinson Department Store. From a judgment for plaintiff, defendant appeals.

Affirmed.

See also, 225 Ala. 389, 143 So. 566.

Reynolds & Reynolds, of Clanton, for appellant.

Lawrence F. Gerald, of Clanton, and Sternfeld & Lobman, of Montgomery for appellee.

FOSTER Justice.

This is a suit on both an open and a stated account, each separately. We will consider and discuss the questions in the order presented in the brief for appellant.

Assignment of error No. 1 relates to the introduction in evidence of a verified itemized statement of the account. Section 7666, Code. There were numerous grounds of objection to the statement thus introduced, and counsel argue them in brief, but the bill of exceptions does not contain a ruling by the court on the objection, and of course there could then be, and there was no exception there disclosed. We cannot therefore consider the objection to the verified statement.

Appellant next insists that, in so far as the account contains items sold to the Robinson Bargain Store (or House), then owned and operated by the wife of defendant, before he bought the business from her, this suit based by its averments upon an account due by the defendant may not be maintained, though the evidence may show that defendant purchased the business from his wife and by the transaction agreed to pay the debts due or owing by her. Appellant contends that such an undertaking, if made by defendant, is a collateral, and not an original contract, and that the common counts are only available to recover an amount due by an original as distinguished from a collateral agreement.

The principle of law is well supported by the authorities, and would be applicable if the agreement of defendant in that respect were collateral. Smith v. McGehee, 14 Ala. 404, 409; Walker v. Forbes, 25 Ala. 139, 149, 60 Am. Dec. 498; Park-Robertson Hardware Co. v. Copeland, 11 Ala. App. 447, 66 So. 880; 5 C.J. 1383.

But we cannot agree that, when a purchaser of property contracts, as a part of his purchase price, to pay certain debts of his seller, the agreement is collateral and is like a guaranty or suretyship. On the former appeal in this case it was pointed out that, if defendant thus contracted, it inured to the benefit of the creditors in whose favor it operated, and is not governed by the statute of frauds as a promise to answer for the debt of another. Robinson v. Solomon Bros. Co., 225 Ala. 389, 143 So. 566.

The theory of the principle is that the purchaser agrees to pay his own debt in a certain way, and that, although thereby he assumes payment of the debt of his seller, he does not make a collateral undertaking, but it is an original contract based upon a new consideration. That contract is not dependent upon the original consideration between the seller and the creditor whose debt the purchaser assumes.

In addition to the cases cited on former appeal, we cite others which make the distinction clear between a collateral and original undertaking as applicable to those facts. The existence of a new consideration which in some of the cases is emphasized as that which controls is shown in others to be so because upon such consideration the purchaser engages as an original and not as a collateral undertaking, and that its collateral aspect is an indirect result only. Malone-Beal Merc. Co. v. Greer, 169 Ala. 543, 53 So. 810; Merrell v. Witherby, 120 Ala. 418, 23 So. 994, 26 So. 974, 74 Am. St. Rep. 39; Aultman & Co. v. Fletcher, 110 Ala. 452, 458, 18 So. 215; Westmoreland v. Porter, 75 Ala. 452, 458; Blount v. Hawkins, 19 Ala. 100; 27 C.J. 137, § 22.

It has been uniformly held that, if a contract has been completely performed, except only the payment of money by defendant to plaintiff, a complaint having only the common counts will lie. Catts v. Phillips, 217 Ala. 488, 117 So. 34; Carrico & Son v. Duval Printing Co., 219 Ala. 65, 121 So. 59; Ward v. First National Bank, 225 Ala. 10, 142 So. 93; Standard Lumber Co. v. Hosmer, 225 Ala. 321, 142 So. 825; Navco Hardwood Co. v. Becks, 222 Ala. 631, 134 So. 4; Tillery v. Price, 223 Ala. 532, 137 So. 440.

The two counts of this complaint claim merely for an "account." They do not specify whether for "money loaned," for "merchandise, goods and chattels sold," for "money paid," for "work and labor done," or for "money received to use of plaintiff." But the first form of the various common counts set out in the Code claims simply "by account." Form No. 10, § 9531, Code. That form justifies a recovery under the circumstances of this case with as much or more propriety than one for "money received to use of plaintiff," which has been held to be applicable to the circumstances of this suit. Potts & Potts v. First National Bank, 102 Ala. 286, 14 So. 663; Mason v. Hall, 30 Ala. 599; Huckabee v. May, 14 Ala. 263.

That form is appropriate for the recovery of money due by contract, when the common counts are available, and there is no one of those counts more appropriate.

Appellant's counsel next contend that there is no sufficient evidence of a stated account. The judgment of the court did not indicate that it was rendered on a stated account, and, since the trial was had by the court without a jury, if there was sufficient evidence to support the judgment as upon an open account, this contention is not material.

Upon the authority of the opinion on the former...