S.A. Williams & Co. v. Newman & Heller

• Decision Date: 02 December 1920
• Docket Number: 6 Div. 118
• Citation: 205 Ala. 86,87 So. 807
• Court: Alabama Supreme Court
• Parties: S.A. WILLIAMS & CO. v. NEWMAN & HELLER.

87 So. 807

205 Ala. 86

S.A. WILLIAMS & CO. v. NEWMAN & HELLER.

6 Div. 118

Supreme Court of Alabama

December 2, 1920

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Assumpsit by Newman & Heller against S.A. Williams & Co., a corporation. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449 Acts 1911. Affirmed.

Beddow & Oberdorfer, of Birmingham, for appellant.

Ritter & Wynn, of Birmingham, for appellee.

SAYRE J.

Appellees sued appellant company, declaring on the common counts. Questions for review were reserved when the trial court sustained plaintiffs' demurrers to special pleas numbered 3, 4, and 6.

Plaintiffs' claim was for the price or value of 12 coats shipped by plaintiffs at New York to defendant at Birmingham; but, upon receipt of the goods, they had been returned by express to plaintiffs, and some of them had been lost in transit. The real controversy was about the goods that were lost, and defendant's effort in pleas 3 and 6 was to show that the express company was the agent of plaintiffs.

Plea 3 was in the alternative, and, on demurrer, was no better than its weakest alternative. It is alleged that defendant "with the consent of acquiescence of the plaintiffs returned (the coats) to the plaintiffs by delivering the same to a common carrier at Birmingham," etc., and "that said carrier was the agent of the plaintiffs by original direction by the plaintiffs to the defendant to make it such or by subsequently accepting said package and treating said carrier as its agent." The effect of the plea, construed against the pleader, is to say that plaintiffs treated the express company as their agent as to the goods lost by the simple act of accepting from it the returned package containing that part of the goods which had not been lost (manifestly, a non sequitur), or it sought to estop plaintiffs to deny that the express company was their agent by defendant's mere conclusion that plaintiffs so treated it; but the rule is that every plea in estoppel must be certain in every particular and must allege the facts upon which the plea is predicated--must, if opportunity be afforded for pleading, allege every material fact which the pleader expects to prove. Jones v. Peebles, 130 Ala. 269, 30 So. 564; 16 Cyc. 808. This plea does not measure up to this rule.

Pleas 4 and 6, like plea 3, were pleas of confession and avoidance. They confessed therefore that defendant did owe plaintiffs for the four coats alleged to have been lost from the custody of the common carrier, thereby confessing that the property in the coats had passed to defendant and that the carrier in undertaking to return them to plaintiffs in New York had been the agent of defendant. Defendant sought to...