Sanders v. Gernert Bros. Lumber Co.

Citation221 Ala. 469,129 So. 46
Decision Date29 May 1930
Docket Number6 Div. 187.
PartiesSANDERS v. GERNERT BROS. LUMBER CO.
CourtSupreme 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.

BROWN J.

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: "In 1923 Gernert Brothers Lumber Company took over a mortgage on the McLendon saw mill. The Gernert Brothers Lumber Company gave a check to Gernert-Castleman Lumber Company for $2203.66 for the McLendon draft and received at the time certain papers which Mr. McLendon had given to the Alabama Machinery & Supply Company and to the Gernert-Castleman Lumber Company, securing the balance of the purchase money on the sawmill outfit. These papers presented to me are the original papers and transfer."

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 "I have arranged to sell the McLendon mill outfit in connection with the tract of timber purchased by Gernert-Castleman Lumber Company, to E. V. Sanders. He is to pay $2500.00 for the mill outfit, and is to pay for the timber $200.00 more than it has cost to date, including interest on what we have paid on it. He is to pay the amount we have paid on the timber in cash, and is to give a four months' note for the mill, hearing the date of maturity of the McLendon note, bearing 8% interest. I take it for granted that you will accept this note, as Mr. Sanders is worth $200,000.00, and his note is good for any amount that he would give it for, at least it is so considered."

On February 20, 1924, the plaintiff, "Gernert Brothers Lumber Company," by letter to Gernert-Castleman Lumber Company, replied: "We are in receipt of your letter of February 18th and note you have sold the Griel timber together with the McLendon mill and are herewith returning deed to land property (properly) executed. As I am not familiar with the description of this property, please check over same so as to be sure we are deeding the right land. We will...

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