Stull v. Daniel Mach. Co.

• Decision Date: 18 May 1922
• Docket Number: 6 Div. 643.
• Citation: 207 Ala. 544,93 So. 583
• Parties: STULL v. DANIEL MACH. CO.
• Court: Alabama Supreme Court

93 So. 583

207 Ala. 544

STULL v. DANIEL MACH. CO.

6 Div. 643.

Supreme Court of Alabama

May 18, 1922

Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.

Action on promissory note by D. L. Stull against the Daniel Machine Company, with judgment over for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6 Acts 1911, p. 450. Affirmed.

Weatherly Birch & Hickman, of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

MILLER J.

D. L. Stull sues W. H. Daniel, doing business as Daniel Machine Company, for $1,000 due by promissory note made by him, waving exemptions as to personal property and agreeing to pay a reasonable attorney's fee for its collection. The defendant pleaded general issue, payment, failure of consideration and three pleas of set-off. There was verdict for defendant for $226.67, judgment thereon by the court, and an appeal therefrom by the plaintiff.

The plaintiff's motion to strike "the claim of damages" in the set-off plea, numbered 5, was overruled and refused by the court. The motion is to strike "the claim of damages." Some of the damages claimed are clearly and specifically averred and appear to be the natural and proximate consequence of the breach. The motion should have been more specific in referring to the damages. It in effect moves to strike all damages, when some are proper. The motion should point out the damages claimed which are not the natural and proximate consequence of the breach of the contract; and the court should not be required to look and search for and then separate the proper from the improper damages. The plaintiff can protect himself from unrecoverable damages by objecting to the evidence which tends to prove the damages, or by excepting to the oral charge of the court as to the damages, or by asking special charges on the subject. As the plaintiff can protect himself in those ways from the recovery of improper damages claimed, the court will not be put in error for refusing motion to strike them from the plea. The court did not err in refusing the motion. Vandiver v. Waller, 143 Ala. 411, 39 So. 136; Bixby v. Evans, 174 Ala. 571, 57 So. 39; Roddam v. Brown, 201 Ala. 111, 77 South 403; Goldsmith v. Picard, 27 Ala. 142.

The plaintiff demurred to and moved to strike plea numbered 1. The court overruled the demurrers and refused the motion. This plea reads: "Defendant denies all the allegations of said count." It is not necessary for this plea to be verified. The cases holding such a plea put in issue the execution of the note (Mobile & M. Ry. Co. v. Gilmer, 85 Ala. 422, 5 So. 138, and E. A. Ins. Co. v. Osborn, 90 Ala. 201, 9 So. 869, 13 L. R. A. 267) were overruled and modified in L. & N. R. Co. v. Trammell, 93 Ala. 350, 9 So. 870. This plea presents only the general issue. It states, in effect, that "the allegations of the complaint are untrue." The court did not err in overruling the demurrers to it, and properly refused the motion to strike it. Section 5331, Code 1907; L. & N. R. Co. v. Trammell, 93 Ala. 350, 9 So. 870; Kas. City, M. & B. R. Co. v. Henson, 132 Ala. 528, 31 So. 590; Mayor, etc., v. White, 109 Ala. 389, 19 So. 428.

Plea 3 reads as follows: "Defendant says that the note sued on had been paid before the filing of this suit." This is not exactly in the Code form. Volume 2, Code 1907, p. 1202 (35). It fails to aver that he (the defendant) paid the note; it avers it was paid before the filing of the suit. If this averment that defendant paid it was necessary, the demurrers do not raise the point or question. The Code form does not require the plea to state to whom it was paid. The plea avers the note sued on had been paid before the filing of this suit. This court had said:

"It makes no difference whether such payment proceeds from a party to the transaction or a stranger." Brewer v. Branch Bank, 24 Ala. 440.

In McLane v. Miller, 10 Ala. 856, this Court also wrote:

"When the party had accepted a satisfaction, it is immaterial whether it moves from a stranger or from one who is directly bound."

This plea avers the note was paid; it avers it was paid before the suit was filed; and from the above authorities it does not appear essential that it should aver payment by the defendant. It is immaterial by whom it was paid-the defendant or a stranger. There is no demurrer to the plea because it fails to state by whom (the defendant or a stranger, giving the stranger's name) it was paid. This averment may be necessary to put plaintiff on notice so he could meet the evidence; but this we do not decide, as it is not raised by the demurrer. The plea was not subject to the grounds stated in the demurrers to it; and the demurrers were properly overruled by the court. Form 35, § 5382, Code 1907, vol. 2 p. 1202; Brewer v. Branch Bank, 24 Ala. 440; McLane v. Miller, 10 Ala. 856.

Plea 4 reads: "Defendant further says that the consideration for said note has failed." Plaintiff demurred to it because "it does not appear in what manner the consideration for said note failed." It was overruled by the court. It should have been sustained. The plea fails to state the facts constituting the failure of consideration. The facts showing the failure of the consideration of the note should have been averred in the plea, that a material issue could be taken thereon. It appears as a legal conclusion in the plea without any facts on which to base it. Section 5330, Code 1907, and authorities there cited; Carmelich v. Mims, 88 Ala. 335, 6 So. 913.

Pleas of set-off numbered 5, 6, and 7 were filed in the cause on the day of the trial. The plaintiff filed motion to strike "the claim of damages made in plea 5" therefrom and also filed motion to strike pleas 5, 6, and 7 because they were filed on the day of the trial and no copy of either of them had been served on the plaintiff or his attorney of record as the law requires. Both motions were heard and considered by the court, and both overruled. The plaintiff did not appear specially-limit his appearance-by the motions, but appeared generally by them.

Demurrers to the complaint were ruled on by the court on the same day the set-off pleas were filed. The filing of the set-off pleas were at that time allowed by the court as a matter of right to the defendant.

It was not necessary for the defendant to file these pleas until the court overruled the demurrers to the complaint. Hence the motion to strike these pleas of set-off from the file was properly refused by the court. Gen. Acts 1919, pp. 555 and 556, approved September 25, 1919; section 5346, as amended by Gen. Acts 1915, p. 825. When two of these pleas of set-off, numbered 5 and 7 were filed, the plaintiff was entitled to legal notice thereof and the right to plead or demur to them within 30 days thereafter, because they were pleas on which the judgment by default may be taken; they each claimed an amount in excess of the amount claimed by plaintiff. Gen. Acts 1919, pp. 555, 556, approved September 25, 1919. The plaintiff did not object to going on with the trial because he had not been served with notice of the filing of the pleas of set-off as required by law and because he had not been allowed the time to plead to them as the law permits. A set-off plea, upon which a judgment by default may be taken, is regarded as a cross-action by defendant against plaintiff; and, when filed, a copy thereof must be issued by the clerk and served by the sheriff upon the plaintiff or his attorney of record in the cause. This gives plaintiff time to secure his witnesses and prepare his defense. Gen. Acts 1919, pp. 555, 556. This court has held:

"A general appearance by a defendant *** may even dispense with the necessity of the service of all process, the purpose of which is only to bring him into court." Birmingham, etc., Mills v. Wilder & Co., 85 Ala. 593, 5 So. 307.

The plaintiff waived his right of service of copy of the pleas of set-off and waived the time allowed him to plead after service of the notice, by appearing generally and filing the motions in regard to the pleas, and by demurring to the pleas, and by participating in the trial of the cause on the merits. Ward v. Manly, 113 Ala. 631, headnote 1, 21 So. 307; Goldsmith v. Stetson & Co., 39 Ala. 183, headnote 2; McCaskey & Ratcliff v. Pollock, 82 Ala. 174, 2 So. 674.

Plea 6 is a claim for work and labor done and for material furnished by defendant for plaintiff under agreement with plaintiff, which defendant offers to set off against the claim of plaintiff. Plea 7 is a statement of claim by defendant against plaintiff for $1,500 due by account, which defendant offers to set off against the demand of plaintiff, and claims judgment for the excess. Each of these pleas, 6 and 7, states a cause of action by defendant against plaintiff, and neither is subject to the grounds of demurrer assigned to them; and the court did not err in overruling the demurrers to these pleas. Sections 5858, 5382, Code 1907, forms Nos . 10 and 37.

The plaintiff demurred to plea 5. The court overruled the demurrer, and this is assigned as error. This plea avers that plaintiff and defendant entered into an agreement a short time after the execution of the note; that this agreement was in substance as follows:

"That defendant would furnish the material and manufacture one set of 24 baking irons at Birmingham, Ala for a certain Stull automatic rotary cone-baking machine, which machine was out at Bessemer, and plaintiff agreed to satisfy and surrender to defendant the note which is now sued on, and to deliver to defendant Birmingham, Ala., the set of baking irons then on said cone-baking machine, and defendant avers that he has complied with all the terms of said agreement on his part, but plaintiff

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