Shearin v. Pizitz

• Decision Date: 12 January 1922
• Docket Number: 6 Div. 865.
• Citation: 208 Ala. 244,94 So. 92
• Parties: SHEARIN v. PIZITZ.
• Court: Alabama Supreme Court

94 So. 92

208 Ala. 244

SHEARIN v. PIZITZ.

6 Div. 865.

Supreme Court of Alabama

January 12, 1922

Rehearing Granted April 20, 1922.

Rehearing Denied Oct. 12, 1922.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action by M. J. Shearin against Louis Pizitz. Judgment for defendant and plaintiff appeals. Affirmed.

I. D Hobbs, of Hamilton, and Harsh, Harsh & Harsh, of Birmingham for appellant.

Leader & Ullman and David R. Solomon, all of Birmingham, for appellee.

ANDERSON C.J.

Pleas 3 and 4 set up a contract in violation of sections 3345 and 6473 of the Code of 1907, intended to prohibit what is termed "futures"; that is, contracts for the purchase and sale of commodities to be delivered at a future day when the parties thereto did not intend that there would be an actual delivery. These pleas, however, are equivocal, as they attempt to avoid the contract set up without admitting or denying the existence of same. They do not admit the contract sought to be avoided, but attempt to avoid it upon the facts set up, they say, "if said alleged contract was made and entered into." "Pleas must either traverse or confess and avoid the matter of the action declared on. And the elements of confession, on pleas of that class, is as essential as that in avoidance." Smith v. Agee, 178 Ala. 627, 59 So. 647, Ann. Cas. 1915B. 129; Central of Georgia R. R. v. Williams, 200 Ala. 75, 75 So. 401.

The defense, however, set up or attempted in these pleas was provable under the general issue. If they deny the allegation, that is but the general issue, or, if they be considered as setting up the illegality of the transaction this fact could have been shown under the general issue, and the error in overruling the demurrer to same was without injury. Baker v. Lehman, 186 Ala. 495, and the authorities cited on page 503, 65 So. 321, on page 324.

The modern rule in England and most of the American states is, if the contract is valid on its face, and the illegality does not appear from the plaintiff's proof, the illegality cannot be proven under the general issue, but must be specially pleaded (the rule followed by us in the former opinion now withdrawn). It is the rule, however, in Alabama and a few other jurisdictions to not enforce a contract in violation of the law and to deny the plaintiff the right to recover upon a transaction contrary to public policy, even if the invalidity of the contract or transaction be not specially pleaded and is developed by the defendant's evidence. 9 Cyc. pp. 740, 741, and notes. True, in the case of Baker v. Lehman, supra, the special pleas setting up the invalidity of the transaction were discussed on pages 500 and 502, but the court held in the "moreover" clause, on page 503 of 186 Ala., on page 324 of 65 South., that the invalidity of the contract was available under the general issue, and the question is stare decisis.

While these pleas are imperfect, the facts set up under either alternative, if proven, would be a good defense, the one alternative being but the general issue, and the other the illegality of the contract, but provable under the general issue and the fact that the trial court adjudged them sufficient and thereby compelled the plaintiff to take issue was of no injury to him, for the reason that the defendant in establishing either alternative made out a complete defense under the general issue, and the plaintiff was not therefore prejudiced by having to take issue upon a plea which did not set up a sufficient defense and have his action defeated because of proof of same. In other words, if a demurrer is overruled to a plea which imperfectly sets out a good defense, provable under the general issue, the special plea being bad because of form, rather than substance, and proof of the facts averred would establish a good defense, provable under the good plea, the overruling of the demurrer to said defective plea could not be injurious; but, if the trial court overrules a demurrer to a plea defective in substance that is, the facts set up did not constitute a legal defense, the error could not be without injury,...