Sears, Roebuck & Co. v. Martin

• Decision Date: 21 December 1905
• Citation: 145 Ala. 663,39 So. 722
• Parties: SEARS, ROEBUCK & CO. v. MARTIN.
• Court: Alabama Supreme Court

39 So. 722

145 Ala. 663

SEARS, ROEBUCK & CO. v. MARTIN.

Supreme Court of Alabama

December 21, 1905

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

"Not officially reported."

Action by J. N. Martin against Sears, Roebuck & Co. for damages for failure to perform a contract of sale. From a judgment for plaintiff, defendants appeal. Affirmed.

The appellee sent to appellants the following order, dated at Birmingham, Ala., November 24, 1902: "Sears, Roebuck &amp Co., Chicago, Ill.--Gentlemen: Please ship me by freight C O. D. the following goods: [Here follows the list of articles, known as "plumbers' goods and material."] Enclosed please find draft for $30.00. Send bill collect through First National Bank. Please send me some order blanks. Ship goods at your earliest convenience, as I am needing them badly. The goods to be subject to examination before paying for same. [ Signed] J. N. Martin." Testimony for plaintiff tended to show that he received invoice of the goods shipped to Birmingham to the order of Sears, Roebuck & Co.; that he inquired at the First National Bank several times for draft and bill of lading, and did not find them; that he tried to get the goods from the railroad agent by paying the amount due on them, $112.13; that not getting these goods compelled him to go into the market and buy them elsewhere at an advance of from 20 to 25 per cent. Martin sues to recover the $30 sent with the order, together with the difference in price of the goods purchased from Sears, Roebuck & Co. and the goods he was compelled to go into the market to buy to take the place of the goods so purchased. The defendants filed two pleas of set-off, setting up as a set-off the price of the goods so purchased under the order above referred to, together with the freight to and from Chicago and the demurrage that had accrued on the goods by failure of Martin to take them from the depot. There was judgment for plaintiff, for $64.

Von L Thompson, for appellants.

L. M Washington and Martin & Roberts, for appellee.

TYSON J.

Appellants' counsel is mistaken in his assertion that there was no evidence tending to support the allegations of plaintiff's complaint and that defendants' pleas of set-off or recoupment were undisputedly established. To the contrary, the averments of the complaint were fully sustained, and the pleas not proven at all. Defendants' obligation to deliver the goods to plaintiff in...