Webb v. J.R. Lowe & Co.

• Decision Date: 24 March 1927
• Docket Number: 7 Div. 629
• Citation: 112 So. 138,215 Ala. 552
• Court: Alabama Supreme Court
• Parties: WEBB v. J.R. LOWE & CO.

112 So. 138

215 Ala. 552

WEBB v. J.R. LOWE & CO.

7 Div. 629

Supreme Court of Alabama

March 24, 1927

Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.

Action by J.R. Lowe & Co. against John E. Webb. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Hugh Reed, of Center, for appellant.

T. Ben Kerr, of Piedmont, for appellee.

SOMERVILLE J.

It is a complete defense to an action on a promissory note that one or more of the items entering into the consideration of the note were based upon sales or other transactions in violation of law. Wadsworth v. Dunnam, 117 Ala. 661, 668, 23 So. 699. And the doctrine has been recognized in this state that a demand based upon an account stated "is essentially the same as if a promissory note had been given for the balance," and that "the recovery is upon the assent to the balance, and the subsequent agreement to pay that balance, as if upon a promissory note." Loventhal v. Morris, 103 Ala. 332, 336, 337, 15 So 672, 673; Reed v. Robinson, 213 Ala. 14, 104 So 130.

Logical consistency would seem to require that the illegality of one or more items of a stated account should render the agreement to pay it invalid, and defeat the action in toto. The principle was settled long ago in this state that, where the illegal items are separate and distinct in description and in price, the plaintiff may separate the legal from the illegal items, and sue for and recover the price agreed to be paid for the former. Leverett v. Garland Co., 206 Ala 556, 558, 90 So. 343; Pacific, etc., Co. v. Mullen, 66 Ala. 582. And this exceptional principle seems to be recognized in other jurisdictions. 13 Corp.Jur. 515, § 472. But in those cases the plaintiff abandoned his claim as for a stated account, and sued merely for the price of the articles legally sold. The difficulty here is that an action on the original account was held by the trial court as barred by the three years' limitation, to escape which plaintiff was driven to his count on a stated account.

The defense set up in plea C to count B was, if properly pleaded, a good defense to that count.

The plea necessarily imports a sale from plaintiff to defendant. It was not necessary for the plea to aver what company manufactured the fertilizer. The second and fifth grounds of the demurrer are therefore bad. The third and fourth grounds are but general demurrers, and therefore invalid. Evitt v....