Behrman v. Newton , 103 Ala. 525 ( 1893 )

COLEMAN, J.

This was an action brought to recover damages for the breach of an agreement, entered into between the plaintiffs and defendant, for the sale of a certain stock of goods, the purchase price being fixed at a certain per cent, on the cost mark of the goods. The breach averred, is that the defendant refused to accept the goods according to contract. The defendant pleaded in short by consent, 1st. The general issue; 2d, recoupment. There were no other pleas, and issue was joined upon these pleas. No facts are admissible in evidence which are not directed to the support of the facts averred in the complaint and in the pleas, and no instructions should be given which are not applicable to the issues before the jury. In actions ex contractu, except it be otherwise provided, the general issue is an averment that the allegations of the complaint are untrue, and puts in issue only the truth of such allegations, and if the defendant does not rely solely on a denial of the plaintiff’s cause of action, he must plead specially the matter of defense. — Code, § 2675. Under the plea of recoupment damages may be recovered by the defendant, which grew out of, or are connected with, as a part of, the matters set forth in the plaintiff’s complaint and in breach of the contract upon which suit is founded, or in violation of a duty imposed by the contract.— Ewing & Gaines v. Shaw & Co., 83 Ala. 333; Martin & Co. v. Brown, 75 Ala. 442; Hatchett v. Gibson, 13 Ala. 593.

’ The evidence on the part of the plaintiffs tended to show a contract for a sale of a stock of goods to defendant at 65 cents on the dollar as shown by the cost mark of the goods as then marked, and a readiness to perform their part of the contract, and the refusal of the defendant to accept the goods and pay for them the stipulated price. The evidence for the defendant tended to show that the terms of the sale were that the defendant was to pay sixty-five cents on the dollar according to the original cost marks, and as a part of the sale contract, the plaintiffs guaranteed to defendant that “the goods were bought from fifteen to twenty-five per cent, cheaper than the same goods could then be bought in the market;” and defendant then offered evidence tending to show that plaintiffs had altered the original cost mark and had marked the goods up, and that the prices were not as cheap as the goods could have been bought in the market. 'The plaintiffs offered evidence tending to show that if the goods were marked up the defendant waived any objection to the sale and purchase on this account. There was other evidence, but this statement is sufficient for th§ purposes of considering the questions assigned as error.

There should be no difficulty in applying legal principles to the facts of the case. The jury must determine the truth when the facts are controverted. If the plaintiffs agreed to sell the goods at sixty-five cents on the original cost mark, and refused to deliver them at this price, or any part of the goods, the defendant was relieved from the purchase, and had the right to reject the goods and repudiate the contract in toto. On the other hand, if while taking an inventory of the goods, the defendant ascertained that the original cost mark had been erased and a higher cost mark placed upon the goods, and the matter was adjusted, and the breach on the part of the plaintiff waived by the defendant, the defendant had the right to make such waiver, and he could not afterwards set up such breach in defense of the action. This was a disputed fact to he determined by the jury. Again, if the plaintiff as a part of the contract of sale guaranteed that the goods were bought at from fifteen to twenty-five per cent, cheaper than such goods could have been purchased in the market, he would be compelled to make his guaranty good to the purchaser, under the fa.cts of this case, and the defendant could recover any loss sustained from a breach of the guaranty ; and the same principles would apply to any guaranty made by the plaintiff as to the character or quality of the goods.

The undisputed facts show that the defendant declined to receive the goods, and there was no evidence offered by the defendant furnishing data upon which his damages could be computed.

We can not see the relevancy of the evidence that plaintiff had collected from the insurance company prior to the sale to defendant one thousand dollars, damages for loss by fife. The defendant had no interest in the goods at that time and none in the policy of insurance. We do not think the court erred in admitting the statement of plaintiff Behrman to the witness Crawford that “he could purchase nice, new, clean goods for the price he was selling the goods to defendant, and that he had made three thousand dollars out of the goods. ’1 This evidence •might tend to shed light upon the proper cost mark of the goods, and also upon plaintiffs’ guaranty.

The court erred in giving charge No. 1 for the defendant. This charge ignores the evidence which tended to show that the defendant waived the marking up of the goods above the original cost mark, and required a verdict for the defendant if the plaintiff “attempted” a fraud, whether the “attempt” was successful or not.

There was no error in giving charge No. 4. A jury can not be reasonably satisfied of the existence of a disputed fact, unless there is a preponderence of the evidence in its favor. In Acklen, Admr. v. Hickman, 60 Ala. 568, it was held that the preponderance, unless it reasonably satisfies the minds of the jury, is not enough; and in the case of Vandeventer & Co. v. Ford & Moseley, 60 Ala. 610, the rule was laid down, that a charge should not be given which instructed the jury that they should base their verdict upon a mere preponderance of the evidence. In Rowe v. Baber, 93 Ala. 422, it is said that the true rule is, that to justify a verdict, the evidence must reasonably satisfy the mind of the jury that the facts exist upon which their verdict is based. These authorities do not conflict with what we have said in reference to charge No. 4. Charge No. 6 is a mere argument. Charges 7 and 8 ignore the evidence tending to show that the defendant waived the marking up of the goods, if in fact they were marked up, higher than the original cost price. We have heretofore criticised the use of the word “attempted” in considering a former charge. These charges require a verdict for the defendant, if the jury should find that the plaintiffs intentionally marked the goods up, although the jury might be satisfied from the evidence that the defendant had waived his right to rescind the contract for this reason, and this question had been satisfactorily adjusted.

What we have said is deemed sufficient to guide the court on another trial, without further specification.

Reversed and remanded.