Jasper Mercantile Co. v. O'Rear , 112 Ala. 247 ( 1895 )

McCLELLAN, J.

The claim of O’Rear &Co. against the Mercantile Co. could not be split up so as to allow Martin O’Rear to set off apart of it against the account of the Mercantile Co. sued on in this case without the consent of the latter. The evidence for the defendant tended to show such consent, but there were contrary tendencies of the testimony. Similarly there was conflict in the evidence as to the scope of the agreement entered into by Lemert and G. D. O’Rear, representing respectively the Mercantile Co. and the O’Rear partnership. The tendency on the one hand was to show that the Mercantile Co. was to accept the checks of the Coke Co. and its own orders given for such checks in payment of any accounts it might have against O’Rear & Co., G. D. O’Rear and Martin O’Rear — the firm or either member of it; while, on the other hand, plaintiff’s evidence tended to show that such checks and orders were to be accepted in payment of the indebtedness of said firm only, and not in payment of the accounts of the individual members of the partnership. And whether or not plaintiff consented to the splitting of the cause of action O’Rear & Co. had against it, and part of which Martin O’Rear set off against plaintiff in this suit, depends upon whether the one or the other of the tendencies of the evidence referred to next above presented the real facts : If the agreement was that the orders and checks turned in by O’Rear & Co. should go against the accounts held by plaintiff against said firm, and also against the individuals composing it, or, in other words, that G. D. O’Rear and Martin O’Rear might each apply parts of any debt on account of said checks and orders the plaintiff should owe the firm of O’Rear & Oo. to the satisfaction of their individual indebtedness to the plaintiff, such agreement would amount to and involve consent on plaintiff’s part to a splitting up of the O’Rear & Co.’s cause of action against it. But if said agreement had relation only to the account of plaintiff .against O’Rear & Co., then plaintiff’s consent to a splitting up of O’Rear & Co.’s cause of action against it is not shown. There was also evidence tending to show “that before the commencement of this suit said G. D. O’Rear and Martin O’Rear agreed that the said Martin O’Rear might offset so much of the account which G. D. O’Rear & Co. had against the Jasper Mercantile Co. against the account the Jasper Mercantile Co. had against Martin O’Rear as would be sufficient to settle the account of the said Jasper Mercantile Co. against Martin O’Rear.” Plaintiff’s account against Martin O’Rear was $47.75. The account of O’Rear & Go. against plaintiff was $100.75. Hence the carrying out of this agreement between G. D. and Martin O’Rear would have involved the dividing or splitting the cause of action which O’Rear & Co. had against plaintiff, and this could not be allowed without the latter’s consent. So that this evidence, if believed, did not take the question from under the influence of the agreement between the plaintiff and O’Rear & Co. Notwithstanding this assent of G. D. O’Rear as to Martin’s using a part of the account as a set off to plaintiff’s demand against Martin, plaintiff’s assent thereto was also necessary, and that assent must be found in the agreement between the partnership and the corporation, as to the terms of which bearing on this point, there was, as we have seen, conflict in the evidence. And we find no evidence in the case tending to show that O’Rear & Co. or G. D. O’Rear ever assented to the use bj?- Martin of the whole account for $100.75 as a set off against plaintiff’s demand, but only such part of it as should be equal to the debt on which plaintiff sues, viz., $47.75. Such assent was essential to support those of defendant’s pleas which offered to set off the whole of that account, and claimed a judgment over for the excess.

It follows that the whole case turns upon the inquiry as to the scope of the agreement made between the Mercantile Co. and O’Rear & Co. If that agreement was that the checks and orders received by O’Rear & Co, should be taken by the Mercantile Co. in payment of, or considered as a set-off against, the latter’s account against O’Rear & Co. only, and not also its accounts against G. D. O’Rear and Martin O’Rear, individually, - then Martin O’Rear could make no use of the account of his firm of $100.75, or any part thereof, against the plaintiff in this case, either as payment or by way of set off; and charge 1 requested by the plaintiff that, “If the jury believe that the agreement made by G. D. O’Rear and Mr. Lemert included in its scope only the firms they respectively represented, then the jury must find for the plaintiff,” should have been given. And this is true upon any possible conclusion we might reach as to wíiat pleas and issues were in the case, for all the pleas interposed by the defendant are either entirely lacking in support by the evidence, or they turn upon a disputed question of fact, which was finally submitted to the jury in this charge, as to the terms of said agreement. So that whether the record shows a judgment entry on demurrers to pleas, and motions to strike replications or not, the result is the same. We may remark, however, that the mere copying into what purports or was intended to be a judgment entry of memoranda made on the docket by the judge, such as “plaintiff’s demurrer to 4th, 5th and 6th pleas overruled, and demurrer to other pleas sustained, ’ ’ is not sufficient as a judgment of the court upon the demurrers. There should in all cases be a formal entry of the submission on demurrers to specified pleadings, a recital of consideration thereof by the court, and a formal adjudication— such as “It is, therefore, considered and adjudged by the court that the demurrers, &c., &c., &c., be and they are hereby overruled, ’ ’ or sustained,' as the case may be.

The court committed no error in refusing charges 2, 3 and 4 requested by plaintiff, nor in giving charge 3 at the request of the defendant. ■

Reversed and remanded.