St. Louis & T.R. Packet Co. v. McPeters

• Citation: 124 Ala. 451,27 So. 518
• Court: Supreme Court of Alabama
• Decision Date: 07 February 1900
• Parties: ST. LOUIS & T. R. PACKET CO. v. MCPETERS.

27 So. 518

124 Ala. 451

ST. LOUIS & T. R. PACKET CO. v. MCPETERS.

Supreme Court of Alabama

February 7, 1900

Appeal from circuit court, Lauderdale county; H. C. Speake, Judge.

Action by the St. Louis & Tennessee River Packet Company against James McPeters. From a judgment in favor of defendant plaintiff appeals. Reversed.

The appeal in this case is prosecuted from a judgment in favor of the defendant on the plea of set-off. The facts of the case are sufficiently stated in the opinion.

Emmet O'Neal, for appellant.

Simpson & Jones, for appellee.

HARALSON J.

This action is on the common counts by the appellant company against the defendant, James McPeters, as the surviving partner of James McPeters & Co., a firm composed of defendant and James Hancock, deceased. The plaintiff seeks a recovery upon proof of one of two theories. By the first it is claimed, that the defendant's firm was the plaintiff's agent at Florence, Ala., and as such agent was charged with the duty of collecting bills for freight due the plaintiff, as a common carrier upon the Tennessee river and remitting the same to plaintiff at St. Louis, Mo., where the company had its place of business. In the second place, it is contended by plaintiff, that if the defendant's firm did not act as plaintiff's agent, James Hancock, the deceased member of the firm, did, and as such agent, collected the money belonging to the plaintiff, commingled the same with the money of the partnership, and allowed the partnership to use it, without accounting therefor.

The defendant attempts to set off against this claim, the amount of certain checks, drawn by Hancock in the firm name of J. McPeters & Co. on a bank in Florence, Ala., payable to John E. Massengale, who was the traffic manager of the plaintiff company in ST. Louis, for the freight bills of that company collected by said Hancock on parties to whom goods were consigned in Florence, which checks were all duly paid to the company, and this, upon the theory, that Hancock was alone the plaintiff's agent, and had used the partnership assets to discharge his individual liability. These checks,-23 in number,-aggregated something over $3,200. This suit was for $700, the alleged balance due on account, by the defendant as surviving partner of J. McPeters & Co. for the freight bills collected after giving credit for these several checks. A verdict was rendered for the defendant on the plea of set-off for the sum of $440.25.

There was a demurrer by the plaintiff to the plea of set-off, and demurrers by defendant were also interposed to a number of replications interposed by plaintiff to the plea of set-off; but the judgment entry fails properly to show a decision of the court upon either the demurrer to the plea or the demurrers to the replications. Mercantile Co. v. O'Rear, 112 Ala. 247, 20 So. 583; Bell v. Otts, 101 Ala. 186, 13 So. 43; McDonald v. Railway Co. (Ala.) 26 So. 165.

There are numerous assignments of error, but as the cause must be reversed, under the view we take of it, we will content ourselves by simply announcing the principles determining the rights of the parties, for the guidance of the court on another trial.

If the plaintiff is entitled to recover at all, it is either because the defendant's firm was the agent of the plaintiff, or not being its agent, and Hancock was, it received from him and had the use of the plaintiff's funds and now withholds the same. If either of these theories be true, it is manifest, that whatever payments the plaintiff received by means of the checks of the defendant's partnership, drawn by either partner, were entirely proper, since in either case, the firm was liable for the same, and either partner was authorized to discharge the liability with partnership funds. It is equally clear, that if the defendant's firm was not liable upon either of the theories above stated there were no mutual debts or demands subsisting between the parties, which could be the proper subject of set-off under our statute. Code, § 3728. The defendant bases his right of set-off upon the contention, that the assets of the firm of J. McPeters & Co. were used to discharge a debt due, individually, by one of the partners of that firm to the plaintiff. It is true a defendant may by separate pleas, make as many defenses as he desires, each plea being consistent with itself, whether his pleas are repugnant to, or inconsistent with each other or not. It is also well understood, that when in an action on a contract the defendant pleads set-off, he thereby admits the validity of plaintiff's contract. Such a plea "confesses the debt sued on, but says the plaintiff ought not to have judgment therefor because he owes the defendant a debt, which the latter elects and offers to set-off against the claim in suit." Ansley v. Bank, 113 Ala. 467, 21 So. 59; Grisham v. Bodman, 111 Ala. 194, 200, 20 So. 514. It will be observed, that the contention of defendant upon which he bases his right of set-off,-that the assets of the firm of McPeters & Co. were used by Hancock, one of its members, to discharge an individual debt of his, and not a debt of his firm,-absolutely negatives any liability whatever of said firm to the plaintiff, notwithstanding the plea of set-off admits the plaintiff's claim. Without reference to the mere forms of pleading and the consistency and inconsistency of different pleas with each other, which the...