Smith v. Lewis

• Decision Date: 16 October 1924
• Docket Number: 6 Div. 224
• Parties: SMITH v. LEWIS.
• Court: Alabama Supreme Court

102 So. 21

212 Ala. 133

SMITH v. LEWIS.

6 Div. 224

Supreme Court of Alabama

October 16, 1924

Rehearing Denied Nov. 20, 1924

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

Suit by E.D. Lewis against Jack Smith. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, page 449, Acts 1911. Affirmed.

Pinkney Scott, of Bessemer, for appellant.

Benton & Bentley, of Bessemer, for appellee.

MILLER J.

This is a suit of E.D. Lewis, trading and doing business under the name of E.D. Lewis Furniture Company, against Jack Smith to recover the sum of $48 due under two conditional sale contracts for household and kitchen furniture, executed by him. The case was tried by the circuit court without a jury on appeal or certiorari from the inferior court of Bessemer. The court found from the evidence that the defendant owed plaintiff $48 on the contracts, and rendered judgment accordingly. This appeal is prosecuted by the defendant from that judgment.

The defendant filed a motion to dismiss the suit and cancel the judgment of the inferior court, because the suit is based on a note or vendor's lien for furniture, which plaintiff before commencing this suit took possession of as his property, the furniture was the sole consideration of the note, wherein plaintiff retained title until purchase price was paid; and that plaintiff thereby elected and executed his remedy and rights against the defendant. The trial court refused to hear testimony on this motion and overruled it and in this there was no error. The matters set up in the motion are in their nature defensive. It was under these circumstances incumbent on the defendant to demur or plead to the complaint. Montgomery Iron Works v Smith. 98 Ala. 644, 13 So. 525, Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944.

There are six counts in the complaint, designated as 1, A, B, B 1/2 C, and D. The defendant demurred to each of them. The court sustained demurrers to counts A, B, and C, and overruled them as to D. Count D may be demurrable, but it was not subject to the grounds of demurrer assigned to it. The grounds of demurrer should specify the defect in the count. When it does not, or the ground is general, the court will not be placed in error for overruling it. Section 5340, Code 1907; Ryall v. Allen, 143 Ala. 222, 38 So 851; Wikle v Johnson, 132 Ala. 268, 31 So. 715; Morris v Beall, 85 Ala. 598, 5 So. 252 We find no ruling of the court on demurrers of defendant to counts 1 and B 1/2, and we cannot review and pass on these demurrers.

Count 1 claims of defendant the sum of $48 due by note made by the defendant and $10 reasonable attorney's fee secured by it, which he agreed to pay.

Count B 1/2 claims $48 damages for the breach of two contracts entered into by defendant dated October 9 and 20, 1924 respectively, by which defendant agreed to pay $5 per two weeks from their dates for furniture until the entire purchase price was paid; and it was agreed therein, in the event the furniture was returned before full payment was made, the defendant would make all back payments due thereon and it avers the defendant failed to make payment of the sum of $48 due under said contract as he agreed to do.

Count D is practically the same as count B 1/2, except it states the purchase price of the furniture under one contract was $156.50, and under the other was $37.50, and it does not aver that defendant agreed, "in event the furniture was returned to plaintiff before fully paid, that defendant would make all back payments."

The defendant filed three pleas, numbered 1, 2, and 3, to these counts. Plea 1 was general issue. Demurrers of plaintiff to pleas 2 and 3 were sustained by the court.

Pleas 2 and 3 are practically the same. They aver the contract referred to in the complaint was for furniture sold by plaintiff to defendant to be paid in installments; that after defendant had paid numerous installments embraced therein the plaintiff "rescinded said contract and repossessed the furniture embraced in it, and the contract fails of consideration." These pleas are defective. We need not mention them. See Wellden v. Witt, 145 Ala. 605, 40 So. 126; Givhan v. Dailey, 4 Ala. 336; 3 Michie Dig. (Contracts) 360, §§ 179-191. The pleas refer to one contract, and counts D and B 1/2 aver there were two contracts. The demurrers to these pleas were general, did not specify the defects as the statute (section 5340) directs, and they should have been overruled by the court. Section 5340, Code 1907, and authorities supra. This error will not work a reversal of the judgment because the case was tried without a jury, and defendant received the benefit of this evidence mentioned in the pleas under the general issue; and, under the undisputed evidence, the plaintiff was entitled to recover the sum of $48, the amount of the judgment in this case. The defendant was not injured by the error. It did not injuriously affect his substantial rights. Ryall v Allen, 143 Ala. 222, 38 So. 851; rule 45, 175 Ala. xxi; 2 Mayfield's Dig. 176-178.

The court did not err in admitting in evidence the two contracts signed by the defendant payable to the plaintiff under the name of E.D. Lewis Furniture Company. There was no plea denying their execution. There was evidence that "they were the contracts and executed by the defendant," and they conformed to the description of them in counts B 1/2 and D. The court did not err in allowing plaintiff to testify as to the amount paid by defendant to him on the contracts and the agreement between them when the property was returned. It was not contrary to, but the same as, the written agreements. The evidence without dispute showed plaintiff sold defendant household and kitchen furniture at two different times for which he executed two contracts. The purchase price of the furniture under one contract was $156.50, and under the other was $37.50. It was to be paid for under each contract at $5 per...