Phillips v. Americus Guano Co. , 110 Ala. 521 ( 1895 )

HEAD, J.

The plaintiff (appellee) declared upon a promissory note. The instrument introduced in support of the complaint is a specialty. There is no plea of the general issue set out in the record, but the judgment entry recites that issue-was joined upon the plea of the general issue and the defendants’ special pleas. It must, therefore, be so taken. This being the case, the vari-anee was fatal, and defendants were entitled to the general charge requested by them, and which the court refused. See authorities on brief for appellants.

As the plaintiff made out no case the cause is not'in a condition that wc can properly pass on the other questions presented by the record. We remark, however, that the written order sent by Gamble to the plaintiff for the fertilizer being in its possession, in order to get the benefit of it, the plaintiff should have produced the writing or accounted for its non-production. Without accounting for its absence, secondary evidence of its contents was inadmissible; and this without regard to whether defendants gave plaintiff notice to produce it or not.

There were four questions presented under the special pleas, viz: Under the first plea, whether Gamble sold the fertilizer to defendants, and if so, whether he had license to sell commercial fertilizer ; under the second plea, whether there was a tag on the guano at the time of the sale, as required by law, which involves the question whether the law of Alabama, under the facts of the case, required a tag in order to entitle the plaintiff to recover; under the third plea, whether Gamble sold the fertilizer to the defendants in bags or sacks, and if so, whether, at the time of the sale, there was branded upon or attached to the bags or sacks a true analysis of such fertilizer, as claimed by the manufacturer, showing the percentage of valuable elements such fertilizer contained, as required by section 143 of the Code of 1886; and this also involves the question whether the requirements of said section 143, under the facts of the case, apply, in order to entitle plaintiff to recover; and under the fourth plea, whether defendants received the guano which constituted the consideration of the note or bond. If the case shall be again tried upon these pleas, the court may avoid error by confining the evidence and instructions to the issues thus presented.

Reversed and remanded.