Winter-Loeb Grocery Co. v. Boykin

• Citation: 82 So. 437,203 Ala. 187
• Decision Date: 05 June 1919
• Docket Number: 3 Div. 403
• Parties: WINTER-LOEB GROCERY CO. v. BOYKIN et al.
• Court: Supreme Court of Alabama

82 So. 437

203 Ala. 187

WINTER-LOEB GROCERY CO. v. BOYKIN et al.

3 Div. 403

Supreme Court of Alabama

June 5, 1919

Rehearing Denied June 30, 1919

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action by L.H. Boykin and others against the Winter-Loeb Grocery Company for breach of warranty in a sale of seeds. From judgment for plaintiffs, defendant appeals. Reversed and remanded.

As originally filed, the complaint was by L.H. Boykin, and sought recovery for a breach of warranty in a sale of certain seeds warranted to plaintiff to be Texas Ribbon cane seed whereas they were a mixture of broom corn and cane seed which produced a crop of greatly less value than would have been the crop produced if said seed had been as warranted by the defendant. Later the complainant was permitted to amend the complaint by adding a number of names who sued for the use of L.H. Boykin.

Steiner Crum & Weil, of Montgomery, for appellant.

Hill Hill, Whiting & Thomas, of Montgomery, for appellees.

ANDERSON C.J.

The complaint as amended contained three counts, the first two being upon a contract for a breach of warranty in the sale of certain seed, and the third was ex delicto; but, as it was charged out by the trial court, we are only concerned with the first two counts upon this appeal.

The amendment did not work an entire change of parties and was permissible. Code 1907, §§ 2490 and 5367. Nor were counts 1 and 2 as amended subject to defendant's demurrer. They disclosed a joint cause of action on the part of L.H. Boykin the original plaintiff, and his coplaintiffs, as added by way of amendment.

It is unquestionably the law that, in order for two or more parties to join in an action upon a contract, there must be community interest; that is, they must be parties to the same and jointly interested therein, though their interest need not necessarily be equal. It is also settled in this as well as many other jurisdictions that, if Boykin made a contract with the defendant for himself and the other plaintiffs jointly they may join in an action for the breach of same notwithstanding the defendant was ignorant of any interest the others had in the contract. McCord v. Love, 3 Ala. 107; 11 Cent.Dig. § 1919; 37 Cent.Dig. § 2347. In order, however, for these plaintiffs to maintain this joint action, the contract that Boykin made must have been made by him for himself and as agent for the other plaintiffs, and not for himself only, with the expectation of advancing or reselling some of the seed to the other plaintiffs. In other words, the other plaintiffs must have been parties to the original purchase--joint vendees with Boykin. If these other plaintiffs were not original vendees of the defendant, but Boykin was the real and sole vendee of the Winter-Loeb Company, and the other plaintiffs were purchasers from or vendees of Boykin, this action cannot be maintained by all of these plaintiffs jointly, and there would be a failure of proof as to a joint cause of action as set out in the complaint. 35 Cyc. 370; Smith v. Williams, 117 Ga. 782, 45 S.E. 394, 97 Am.St.Rep. 220; Amer. Digest Dec. vol. 17, §§ 255 and 427; Jackson v. Bush, 82 Ala. 396, 1 So. 175. While there may have been a conflict in the evidence of Boykin and the defendant's salesman as to whether or not there was a straight out sale of the seed or a mere undertaking on the part of the defendant to procure the same, this conflict was made immaterial by the subsequent correspondence and final...