Simon v. Johnson

• Decision Date: 15 January 1896
• Citation: 108 Ala. 241,19 So. 244
• Parties: SIMON ET AL. v. JOHNSON.
• Court: Alabama Supreme Court

19 So. 244

108 Ala. 241

SIMON ET AL. v. JOHNSON.

Supreme Court of Alabama

January 15, 1896

Appeal from circuit court, Geneva county; J. W. Foster, Judge.

Action by Joseph Simon & Son against J. J. Johnson for the price of goods. From a judgment for them for the price, less a set-off allowed defendant, plaintiffs appeal. Reversed.

J. J Morris, for appellants.

M. E Milligan, for appellee.

HEAD J.

This is the third appeal in this cause. 101 Ala. 368, 13 So. 491; Id. 16 So. 884. The action is by Simon & Co., of New Orleans, for $198.09, for goods sold defendant, Johnson and for the same sum on account stated. It is not disputed that in the summer of 1890, J. B. Carlysle, a drummer of plaintiffs, sold the goods to defendant at the price sued for, which goods the plaintiffs duly shipped to, and they were received by, defendant. The bill was to mature February 1, 1891, and, before it was due, defendant paid the amount thereof to Carlysle, less a discount allowed by Carlysle. As settled by our former decisions, supra, and as admitted on the present trial, Carlysle had no authority to make the collection. He was examined as a witness by the defendant and testified that, in December, 1890, he was in New Orleans, where plaintiffs live, and made arrangements with them to work out the amount he had collected from defendant, and plaintiffs were to let the amount stand until he worked it out, upon condition that he was to abstain from drinking and playing cards; but that he did not quit drinking or playing cards, and plaintiffs discharged him. After he was discharged, he continued to send in orders to the plaintiffs, and they filed them for about two months, although he was discharged, and he drew on them for part of his salary, but they would not pay the draft. Two of the plaintiffs testified, in their own behalf, that they had J. B. Carlysle employed as traveling salesman for them during the year 1890, selling by samples only; that Carlysle visited Geneva, Ala., in June, 1890, and sold the bill of goods to defendant; that, some time in October, 1890, defendant wrote plaintiffs that he had paid Carlysle for the goods, and had his receipt in full for the amount; that plaintiffs replied, at once, that Carlysle had no authority to collect, and that they would not recognize the settlement; that, some time in December, Carlysle was in New Orleans, and they showed him defendant's letter regarding the collection of the amount, when he denied having collected it, and said that defendant was mistaken; that he owed defendant $75 individually, and wanted to arrange with them to settle this amount with defendant; that plaintiffs agreed to pay $50 per month to defendant, if Carlysle would conduct himself properly, but when they found out how he was conducting himself, they discharged him, and refused to pay a $50 check Carlysle drew on them for defendant; that, in January, 1891, they wrote to defendant, in Geneva, and sent him a statement of his account, when defendant replied that Carlysle was now in Geneva, and that he (Carlysle) said he would pay the amount by the time it was due, February 1, 1891. Replying to this, plaintiffs then wrote defendant what Carlysle had said, at New Orleans, regarding the collection of this amount, and that Carlysle denied collecting it, but said he owed defendant $75 individually, and this was the amount that they were trying to held defendant save out of Carlysle's wages; that they had never authorized Carlysle to collect the amount; that the same was now due, and no part of it had ever been paid to any one authorized by them to receive it; and that...