Sanders v. Gernert Bros. Lumber Co.
Citation | 221 Ala. 469,129 So. 46 |
Decision Date | 29 May 1930 |
Docket Number | 6 Div. 187. |
Parties | SANDERS v. GERNERT BROS. LUMBER CO. |
Court | Supreme Court of Alabama |
Rehearing Denied June 26, 1930.
Appeal from Circuit Court, Jefferson County; Joc C. Hail, Judge.
Action on promissory note by the Gernert Brothers Lumber Company against E. V. Sanders, individually, and as E. V. Sanders Lumber Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Lange Simpson & Brantley, of Birmingham, for appellant.
Stokely Scrivner, Dominick & Smith, of Birmingham, for appellee.
The first ground of demurrer filed to the complaint, that "said complaint does not state facts sufficient to constitute a cause of action," is not sufficiently specific to present the objection that the complaint does not allege the due date of the note. Code 1923, § 9479; Henley v. Bush, 33 Ala. 642.
The statute, as was held in the cited case, not only abolishes general demurrers, but expressly prohibits the allowance of any objection not specifically stated in the demurrer; the object of the statute being to prevent surprises and to protect parties from injury in consequence of errors in pleadings not made until the time for amendment has passed. Henley v. Bush, supra; Denson v. Caddell, 201 Ala 194, 77 So. 720.
Plea C the demurrers to which were overruled, is in substance and legal effect identical with plea 9, and if error was committed in sustaining the demurrers to plea 9, defendant had full benefit of the matters set up in said plea, under plea C, and the error was without injury. Vogler v. Manson, 200 Ala. 351, 76 So. 117.
While the practice of reading documents not in evidence in the preliminary opening statement of counsel to the jury is not to be commended, still, the letter from which the plaintiff's counsel read in this case was subsequently introduced in evidence, without objection, and the only objection made, at the time it was read in the preliminary statement, was that it had not been offered, and defendant's counsel had had no opportunity to inspect it. We are not of opinion that reversible error can be predicated on this ruling. In Loeb v. Webster, 213 Ala. 99, 104 So. 25, the objection was that the statement had no bearing upon the cause and was not material, and it was of a character that tended to prejudice the jury against the defendant.
To put the trial court in error for refusing the affirmative charge because of a variance between the averments and proof, it must appear from the record that the variance was brought to the attention of the trial court by proper objection to the evidence. Rule 34, Circuit and Inferior Court Practice; Code 1923, vol. 4, pp. 906, 907; Woodmen of the World v. Maynor, 209 Ala. 443, 96 So. 352.
The evidence shows that appellant purchased, or at least thought he purchased, a sawmill from Gernert-Castleman Lumber Company, a domestic corporation doing business in Selma, Ala., in 1923. The mill at that time was in possession of one McLendon, or McLendon and Pugh, under claim of ownership, they having theretofore purchased the same from the Alabama Machinery & Supply Company.
Viewing the evidence most favorably to the appellee, McLendon and Pugh had given a mortgage and notes to the Alabama Machinery & Supply Company on the mill to secure the purchase money.
The evidence shows that plaintiff, acting through and by the Gernert-Castleman Lumber Company, purchased and took over the note and mortgage from the Alabama Machinery & Supply Company. Mr. Gernert, the president of the plaintiff corporation, testified:
Thereafter on February 18, 1924, Mr. Dayton Castleman, who was the manager and had entire charge of the operation of the Gernert-Castleman Lumber Company, advised the plaintiff by letter, that
On February 20, 1924, the plaintiff, "Gernert Brothers Lumber Company," by letter to Gernert-Castleman Lumber Company, replied: ...
To continue reading
Request your trial-
A.B.C. Truck Lines v. Kenemer
... ... Meyrovitz, 119 Ala. 152, 24 So. 514; Fife v. Pioneer ... Lumber Co., 237 Ala. 92, 185 So. 759; Savage v ... Savage, Ala.Sup., 20 ... Co. v ... Coin, 197 Ala. 584, 73 So. 117; Sanders v. Gernert, ... 221 Ala. 469, 129 So. 46 ... In ... ...
-
Prudential Ins. Co. of America v. Zeidler, 6 Div. 935
... ... Gulf Electric Co. v. Fried, 218 Ala ... 684, 119 So. 685; Sanders v. Gernet Bros. Lumber Co., 221 ... Ala. 469, 129 So. 46." ... ...
-
Most Worshipful Grand Lodge of A. F. & A. M. of Alabama (Colored) v. Callier
... ... initiated; in Sanders v. Gernet Bros. Lumber Co., ... 221 Ala. 469, 129 So. 46, it was held ... ...
-
Alabama Power Co. v. Emens
... ... been standing for a number of years was constructed of pine ... lumber and plastered on the inside over wooden laths; that a ... short time ... Power Co. v. Bodine, 213 Ala. 627, 105 So. 869; ... Sanders v. Gernet Bros. Lumber Co., 221 Ala. 469, ... 129 So. 46 ... ...