Wikle v. Johnson Laboratories

• Decision Date: 16 January 1902
• Citation: 132 Ala. 268,31 So. 715
• Parties: WIKLE v. JOHNSON LABORATORIES.
• Court: Alabama Supreme Court

31 So. 715

132 Ala. 268

WIKLE v. JOHNSON LABORATORIES.

Supreme Court of Alabama

January 16, 1902

Appeal from city court of Anniston; Jas. W. Lapsley, Judge.

Action by the Johnson Laboratories against J. L. Wikle. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This was an action brought by the Johnson Laboratories, a corporation, against the appellant, J. L. Wikle, and sought to recover an amount due by an account for goods and merchandise sold by the plaintiff to the defendant. The defendant pleaded the general issue and two special pleas. The second plea was as follows: "(2) For further plea the defendant says that the goods for which said suit is brought were purchased under a special contract, in which said plaintiffs agreed and contracted with defendant that the plaintiffs would advertise said goods at their own expense until said goods were sold by defendant. And defendant says that the said plaintiffs failed to so advertise said goods wherefore this defendant has not been able to sell said goods, and upon the plaintiffs' said failure this defendant notified the said plaintiffs of their said failure and offered to return said goods to plaintiffs. Wherefore defendant avers that he has suffered damages by reason of plaintiffs' said failure to comply with said contract in the sum of one hundred and twenty-five dollars, which defendant offers to recoup against the demand of the plaintiffs, and asks judgment for the excess." The third plea was substantially the same as the second. The plaintiff filed the following replication to the second and third pleas. "The plaintiff, for replication to defendant's pleas Nos. 2 and 3, says that it advertised the goods sold to defendant in accordance with the contract between it and defendant, and while so advertising said goods the defendant himself caused the said advertisement to be stopped, and the same was stopped on account of the defendant representing to the publisher of said advertisement that plaintiff was a fraud. Plaintiff further avers that, as soon as it had notice that said advertisement had been discontinued, it renewed the same, and kept the same in a newspaper in Anniston, Ala., until the defendant breached his said contract further by refusing to pay for same when due." The defendant demurred to the replication to the second and third pleas, but assigned no specific grounds of demurrer; the ground of demurrer being that the replication was no answer to the plea. This demurrer was overruled, and issue was joined on the pleading. On the trial of the case it was shown that the plaintiff had sold to the defendant who was a druggist, some medicines, and that for the purchase price of these medicines this suit was brought. An itemized statement of the account between the plaintiff and the defendant, and the amount due from the defendant, were introduced in evidence. It was further shown by the evidence for the plaintiff that on January 10, 1899, the defendant signed an order, addressed to the plaintiff, for the goods for the purchase price of which the present suit was brought. It was stipulated in this order that, in consideration of being advertised as one of the plaintiff's agents, the plaintiff would ship the goods as shown in the order. There was also the following statement in the order: "Goods exchangeable, and above goods to be advertised until sold." The medicines ordered by the defendant amounted to $103.50. The plaintiff's evidence tended to show that after giving this order by the defendant, the goods were shipped to him in two installments. One lot of goods amounting to $69, was shipped a few days after the order was received, and the other goods, amounting to $34.50, where shipped on February 9, 1899. Upon the plaintiff introducing in evidence a statement of the account with the defendant, the defendant objected to that part of the account which bore the date of February 9th upon the ground that the order did not provide for two shipments of the goods. The court overruled the objection, and the defendant duly excepted. The plaintiff introduced as a witness M. A. Smith, who stated that he was the publisher of the Hot Blast, a daily newspaper published in Anniston, Ala., the city in which the defendant did business; that he advertised in the newspaper for the plaintiff, and that this advertising was done under a contract which was made with the plaintiff's agent in January, 1899, and the contract provided for the continuous advertisement in said newspaper; and that it was also provided that the defendant's name was to be attached to the advertisement. This witness further testified that the advertisement ran in his paper a short time, and was then discontinued for six weeks; that the defendant came to the witness, and stated that he had found that he had not been able to find what was the plaintiff's commercial standing, and that he believed that the plaintiff was a fraud. This witness further testified that it was after this conversation with the defendant that he discontinued the advertisement, and presented his bill to the plaintiff therefor; that, upon the plaintiff subsequently paying the bill, the advertisement was continued for six months. The defendant objected to the question asked this witness, which called for the conversation had between him and the defendant in which the defendant stated that he believed the plaintiff was a...