Smith v. Dick

• Decision Date: 12 April 1892
• Citation: 95 Ala. 311,10 So. 845
• Parties: SMITH v. DICK.
• Court: Alabama Supreme Court

10 So. 845

95 Ala. 311

SMITH v. DICK.

Supreme Court of Alabama

April 12, 1892

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

Action by C. W. Dick against A. J. Smith on an account. From a judgment on a verdict for plaintiff, defendant appeals. Affirmed.

This action was brought by the appellee, C. W. Dick, against the appellant, A. J. Smith, and counted upon the common counts in the following language: "The plaintiff claims of the defendant the sum of one hundred dollars due on account stated before the commencement of this suit, on, to wit, the _________ day of February, 1888. The plaintiff claims of the defendant the sum of one hundred dollars for a mule that plaintiff sold to defendant." The suit was commenced in the magistrate's court, and was appealed to the circuit court by defendant. The defendant demurred to the first count of the complaint upon the ground that it did not aver the day upon which the account therein alleged was stated. The defendant also demurred to the second count of said complaint, on the grounds that it fails to show in what manner the defendant is liable in the sum claimed for the mule; second, that said count fails to aver that plaintiff sold the mule named therein for the sum claimed third, that said count does not show that defendant was liable in the sum claimed for the mule mentioned in the count. The plaintiff was granted leave to amend his first count in the complaint, and the demurrers to the second count of the complaint were overruled. The defendant pleaded the general issue, and by special plea set up the defense that by an agreement between the plaintiff and defendant, a certain number of mules were placed in the defendant's care for sale, with the understanding that, after the plaintiff paid back the purchase price of the mules, and the defendant was paid the expenses incurred in keeping them, the plaintiff and the defendant were to divide the net profits among themselves; and the defendant averred in the special pleas that there had not been any settlement of the profits between plaintiff and the defendant. The judgment entry recites that the plaintiff's demurrer to defendant's plea No. 4 was sustained, but the record does not contain the demurrer referred to. The judgment also recites that upon the jury finding for the plaintiff, and assessing his damages at $124, the court proceeded to render judgment for that amount against the defendant and the sureties on his appeal bond from the justice's court to the circuit court.

J M. Chilton and S. O. Houstin, for appellant.

T L. Kennedy, for appellee.

WALKER J.

1. The second count of the complaint follows substantially one of the Code forms for the common counts, the claim being for "one hundred dollars for a mule that plaintiff sold to the defendant." In...