Watson v. Kirby & Sons , 116 Ala. 557 ( 1897 )

COLEMAN, J.

The present litigation grew out of the following written agreement:

“Iuka, Miss., Nov. 6th, 1894.

“Know all men by these presents that I, C. L. Watson, do hereby agree to put a certain lot of poplar logs, now in Bear Creek, into the boom at Watson & Hughes’ mill for William Kirby & Sons for the sum of five (5)' dollars per thousand feet scribner measure, and subject to regular inspection as to damage, flaws, etc. I further agree with the said Kirby & Sons to put the logs there, just as soon as the stage of the water will permit them to be run. It is further agreed and understood that the price of five (5) dollars per thousand feet, shall be due and payable as soon as said logs are inspected and measured in the booms which shall be done immediately on their delivery into the boom, said logs estimated to be between two hundred and three hundred - thousand feet which are cut and ready to be run when the water rises sufficiently.”

Watson sued, and the case was tried by the court without a jury. The first count of the complaint counts upon the contract and claims nine hundred dollars for “a lot of logs sold” to the defendants, and avers a delivery to the defendants of the logs, under the contract, and that they sawed 200,000 feet, at five dollars per thousand, upon'which the defendants were entitled to a credit of one hundred dollars.

The second count is in the common form for 1 ‘poplar logs, merchandise, goods and chattels sold and delivered to defendants at their instance and request.”

There were two other counts added, it seems, during the progress of the trial. The first of these, which makes the third count of the complaint, sets out the above contract in full, and avers that after a delivery of a portion of said logs under the contract, to-wit, the amount of 177,432 feet, the defendants repudiated said contract and refused to receive the balance of said logs and pay for the same, and refused to measure and pay for the logs as stipulated in the contract, and by sawing and converting some of • the logs to their own use before the stage of the water on Bear Creek would permit the balance of the lot of logs to be delivered to the defendants, became indebted to the plaintiff for the 177,432 feet received by them, and then admits a credit of one hundred dollars.

■ The 4th and last count also sets out the contract in full and claims payment forT77,430 feet of poplar saw logs sold to defendants. It avers “that said lot of logs measured 177,430 feet after deducting all damages, flaws, etc., as stipulated in said contract, and that the ■whole amount of said lot of logs were delivered except about ten thousand feet, which plaintiff was unable to deliver on account of the very low stage of the water in Bear Creek, before defendants shut down their mill and moved out of the State of Alabama, * * and refused to receive the balance of them. Wherefore, plaintiff sues to recover the full amount of 177,430 feet as stipulated,” etc., giving credit for one hundred dollars.

The defendants filed a number of pleas, many of which were included in the plea of the general issue, and there was also the plea of payment. On the plea of payment, the court found the issue in favor of the defendants, and the court also found for the defendants on their counter claim of recoupment and rendered judgment in their favor against the plaintiff. There was a number of special pleas also. We will consider at this time only those as to which rulings were made by the court, to which the plaintiff reserved exceptions, and which in our opinion require a decision.

Following the judgment of the court, we find that the motion to strike plea number 10 and parts of it from the file Avas overruled. The fact that a plea may present two separate grounds of defense, does not demand that it be stricken from the files. The plea states that by the terms of the contract it was agreed that the poplar logs referred to therein “ should pass regular inspection as to damage, flaws, etc.,” and defendants aver that said words “subject to regular inspection as to damage, flaws, etc., contained in said contract meant that only merchantable or good poplar logs could be delivered thereunder.” This court does not judicially know what was intended by the parties by the texuns “ subject to regular inspection as to damage, flaws, etc.” The pleader undertakes to inform the court. Whether he is correct in his definition is a matter of proof. This ground for striking the plea was properly overruled. The other grounds do not require further consideration.

The plaintiff's demurrer to pleas 7 and 10 were overruled. Applying the rule, that we are to pass upon only the precise ground of demurrer assigned, there was xxo error in ovemxling the demurrers.

The defendants do xxot plead an offset to the demand of plaintiff, but they claim by x’ecoupment. A plea may state certain facts prima facie material and aver that they were falsely and fraudulently made to induce the making of a contract, and were the inducement, and the fact that the contract itself does not include the representations, or refer to them, cannot be urged against the validity or sufficiency of such a plea. The other grounds of demurrer have been disposed of under the motion to strike.

Without passing upon the merit of each of the replications to defendant’s pleas, to which demurrers were sustained, it is sufficient to say, that the plaintiff had the full benefit of such replications, in the joinder of issue upon the defendant’s pleas, and in the 3d and 4th counts added during the progress of the trial. In considering the pleadings,' as also the merits of the case, it must be borne in mind, that the plaintiff sties in com- • mon form for a quantum valebat, as well as upon the contract, and whatever tended to show the real value of the logs was legitimate evidence. We find no error in the ruling of the court upon the pleadings. Independent of these considerations, the record shows that issue was joined upon the general issue, and on the plea of payment. The judgment of the court adjudges “that upon the defendants’ plea of payment the issue is found in favor of the defendants. ” If the conclusion of the court upon the plea of payment is sustained by the evidence, although there may have been error in the ruling of the court upon the demurrers, motions and replications relating to the special plea of recoupment, such error would not avail to reverse the cause, so far as the judgment of the court sustains the plea of payment. — Shahan v. Ala. Gr. So. R. R. Co., 115 Ala. 181, and authorities cited. The cause was tried by the court without a jury. We have examined the record very thoroughly. It cannot be doubted that there is an abundance of evidence which sustains the finding of the court upon the plea of payment. Following the general rule in such cases, we are required to affirm the judgment. — Boyle v. Boyle, 23 Ala. 544, 546; Kirksey v. Kirksey, 41 Ala. 635; Woodrow v. Hawving, 105 Ala. 240; Scarbrough v. Borders, 115 Ala. 436.

The court also rendered judgment in favor of the defendants against the plaintiff upon the counter claim set up in the plea of recoupment. We have examined the evidence introduced in support of this claim, and the rulings of the court upon the exclusion and admission of such evidence.' We are not .clearly satisfied that the court is entirely free from error upon the claim of recoupment. Counsel for appellee in their brief, request an affirmance upon the plea of payment. The statute under which the appeal is prosecuted authorizes the court to render such judgment as in its judgment should be rendered. The appellant has no right to a reversal of the judgment upon the plea of payment. The appellees consent-to a judgment for plaintiff upon the plea of recoupment. Of this the appellant cannot complain. Judgment will, therefore, be rendered for the defendants. We must not be understood as holding that the bill of exceptions sufficiently shows that it contains all the evidence. •

Modified and affirmed.