Sudduth v. Holloway

• Decision Date: 23 October 1924
• Docket Number: 6 Div. 209.
• Citation: 101 So. 733,212 Ala. 24
• Parties: SUDDUTH v. HOLLOWAY.
• Court: Alabama Supreme Court

101 So. 733

212 Ala. 24

SUDDUTH v. HOLLOWAY.

6 Div. 209.

Supreme Court of Alabama

October 23, 1924

Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.

Action by J. W. Holloway against Henry Sudduth. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6. Affirmed.

Inapplicable instruction as to damages held not prejudicial error.

Count 2 of the complaint is as follows:

"The plaintiff claims of the defendant the sum of $250 with legal interest thereon, for that on, to wit, September 12 1917, the defendants were selling coal, and the plaintiff bought of the defendants, on, to wit, said date, a car of coal, to wit, 55 tons; that at the time of said sale and purchase the defendant knew that the plaintiff was buying said coal for the purpose of burning it to generate steam to operate machinery; that it thereupon became and was the duty of the defendants to furnish plaintiff such coal as would burn and generate steam, for the purpose of operating machinery; that the defendants did not furnish the plaintiff such coal as would burn and generate steam, and thereby operate machinery, but the coal that was furnished by defendants was very inferior and contained great quantities of rock, shale, slate, or foreign matter, which rendered the coal worthless for the purpose for which it was bought and sold. Plaintiff avers that he paid the defendants for the said coal $175, paid the freight on same from Carbon Hill, Ala., to Guin, Ala., amounting to $60 and paid drayage or haulage on the said coal from the car to his machinery amounting to $30,-all of which money so expended was the result of the defendant's failure to furnish the kind of coal that the plaintiff bought, and that the defendants sold to plaintiff."

Defendant demurred to this count upon the ground, among others, that it does not define the obligation averred, whether it was expressly assumed or resulted from implication.

Plea 6 is as follows:

"Comes the defendant, and for answer to the complaint says that the claim sued on is not the property of the plaintiff; he having transferred all his interest therein before the commencement of this suit."

It appears that plaintiff, Holloway, was operating a cotton gin at Guin, and needed coal to generate steam and operate his machinery; that he made known his needs to one Anthony, who undertook to secure coal for him; that Anthony did procure the car of coal in question to be shipped by the defendant, with draft attached to bill of lading, consigned to shipper's order, notify A. W. Anthony & Son; that plaintiff paid the draft and unloaded the coal at his gin, but that it was of inferior grade, not suited to the purposes for which it was bought, and would not generate steam. Anthony, as a witness for plaintiff, testified that when plaintiff told him of his need for coal he called defendant, at Carbon Hill, on the telephone and stated to defendant that he (Anthony) had a friend who was in need of some steam coal, and asked defendant if he knew where he could get some; that defendant, in the conversation, told him he had a car loaded that he could ship; that Anthony told defendant who his friend was, that he had a gin, that cotton was piling up, and that he was in dire need of coal; and that defendant said he would ship the car, shipper's order notify, etc. This witness further testified that he did not see or inspect the coal. On this point, defendant testified that Anthony personally inspected and accepted the coal before it was shipped.

It appears further that the plaintiff disposed of his gin and assigned the claim, the basis of this suit, to one L. Pearce; that Pearce retransferred the claim to plaintiff for the purpose of maintaining the suit; that plaintiff paid nothing for the transfer; and that any proceeds of the claim would inure to Pearce.

These charges were refused to defendant: "(A) The court charges the jury that it is necessary for J. W. Holloway, to own a beneficial interest in the results of this suit, and, unless you are reasonably satisfied that J. W. Holloway has such interest, then you will find for the defendant.

"(B) The court charges the jury that if they believe from the evidence that the plaintiff Holloway had no interest in the results of this suit at the time of filing the suit, then you will find for the defendant.

"(D) The court charges the jury that if they believe from the evidence that L. Pearce was the sole owner of the damages claimed in this suit at the time suit was filed, then you will find for the defendant.

"(E) The court charges the jury that if you believe from the evidence that the transfer from L. Pearce to Holloway in evidence was made without any valuable consideration, but was done to enable Holloway to bring suit, and did not transfer or assign the legal title to the damages involved in this suit, then you will find for the defendant."

Defendant excepted to these portions of the court's oral charge:

"That J. W. Holloway is a proper party plaintiff in this case, because the legal title to the claim, whatever claim there is, is in J. W. Holloway. He and he alone can discharge this defendant from liability, if there be any liability, under this contract, and therefore the suit is properly brought in the name of J. W. Holloway."

"The court instructs you that the measure of damages is the amount of money that the plaintiff paid out for the article which he complains; for the coal which he complains failed to come up to recommendation, or the difference

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