Owensboro Wagon Co. v. Hall , 149 Ala. 210 ( 1907 )

DOWDELL, J. —

This is the second appeal in this cause by the plaintiff, the Owensboro Wagon Company. Alien the cause was here on the former appeal, the contract, the foundation of the suit, was construed by this cornet in an opinion by Anderson, J., concurred in by McClellan, C. J., and Tyson and Simpson, JJ. — Owensboro Wagon Co. v. Hall, 143 Ala. 177, 42 South. 113. For reasons then stated the defendant’s fourth and fifth jileas were, held to be bad, and subject to the demurrers interposed, and the seventh plea was held to be good, and not open to the demurrer. No formal judgment was rendered in this court sustaining the demurrers to the fourth and fifth pleas, held to be bad, but simply a judgment of reversal of the judgment of the trial court in overruling the demurrers to the fourth and fifth jileas, and a remandment of the cause. This left the cause for further action to be tried in the trial court on the demurrers to the said pleas, in accordance with the views and rulings of this court, unless the parties saw fit to abandon the demurrers. The case, therefore, as it stood in the trial court after, remandment, was without any judgment on the demurrers to these jileas.

It ajipears from the record that, after remandment of the cause, the defendant amended his fifth plea in conformity with the ruling of this court and to meet the defects jiointed out by the demurrer, but nothing was done toward amending the fourth plea. No judgment of the court ivas taken or had on the demurrers originally filed to this fourth plea. In this state of the record it will be presumed on appeal that the plaintiff did not insist on its demurrer to the fourth plea, but abandoned the same. After the issues were made up, and the cause had been submitted to the jury, the plaintiff then asked leave to file demurrers to the fourth plea, which the court declined to permit. .At this stage of the trial, to withdraw the case from the jury and allow the plaintiff to demur to the plea was matter addressed to the discretion of the trial court, and the court’s ruling on the same is not revi sable on appeal. The fifth plea, as amended, conforming to the views heretofore expressed by this court on former' appeal was unobjectionable on grounds assigned in the demurrer filed to it, and the court, therefore, properly overruled the demurrer.

The complaint, as originally filed, was on the common counts. The plaintiff, after the romandment of the cause, by leave of the court, amended its complaint by adding two counts, numbered 6 and 7, on a special contract set out in the complaint as amended. Thereupon the defendant moved to strike the counts added by way of amendment, which motion the court granted, and struck the amendment from the file, to which action of the court the plaintiff duly excepted, and this ruling is here assigned as error. The amendment constituted no departure in pleading, and, while it set up a new claim in tlie suit different from the common counts, it did not introduce an entirely new and different cause of action from that originally declared on. — Nelson v. First National Bank, 139 Ala. 578, 36 South. 707, 101 Am. St. Rep. 52. The defendant had already filed pleas in which it was averred that this same contract, declared on in the amendment to the complaint, was the foundation of plaintiff’s suit on the common counts. There were other grounds of the motion to strike; but we do not consider tlris question further than to say that the proper mode of testing the sufficiency of pleadings, when neither prolix, irrelevant, or frivolous, is by demurrer, and not by motion to strike. — A. G. S. R. R. Co. v. Clarke, 136 Ala. 461, 34 South. 917. The court erred in sustaining the motion to strike the amendment.

The age of the defendant was wholly immaterial and irrelevant to any issue in the case, but we are unable to see wherein the plaintiff was prejudiced by the admission of this evidence; the' evidence being that he Avas about 76 years old.

It Avas competent and admissible in evidence for the defendant to show that he notified the plaintiff of his going out of the mercantile business. But in doing this, by introducing letteis purporting to be from the plaintiff, it Avas' incumbent on the defendant to offer evidence of the genuineness of the letters, when their introduction Avas objected to on this ground, before the same could become admissible. In the course of the examination of the defendant as a Avitness in his OAvn behalf, he stated: “I received other letters from the Owensboro Wagon Company, but I can’t find them. I don’t knoAV Avhat Avere the contents of these letters.” Defendant’s counsel then asked the Avitness: “What Avas in those leters?” “State the contents, as far as you can remember.” The plaintiff objected to the question on the ground that the letters were the best evidence, and that no sufficient predicate had been laid for the introduction of secondary evidence. The court overruled the objection, and the Avitness than answered, giving his recollection in a general Avay of the contents of the letters, Avhieh answer the plaintiff moved to exclude on the same grounds stated in his objection to the question; but the court refused to exclude, and to all of which action of the court the plaintiff duly excepted. The mere statement of the Avitness that “I can’t find them” (the letters) did not sIioav that he had made search for them, and fell far short of shoAving a diligent search and failure to find, a necessary predicate for the introduction of secondary evidence of the contents of the letters. The trial court erred in overruling the objection to the question and in admitting this evidence.

There Avas no error in admitting the statement of accounts offered by the defendant. T-Ie testified that he receirud these statements from the plaintiff, and, further, that he rawer had any' transaction Avith the plaintiff, as to any Avagons, but the one Avhieh Avas the foundation of this suit. Under the issues, we think this evidence1 of the return to the plaintiff of the unsold Avagons competent and admissible.

It is insisted by counsel for the plaintiff that the plaintiff, under the contract, had the option, at the expiration of 12 months from the date of the invoice, of treating the defendant as a purchaser of any wagons remaining in his hands unsold at such time, and that no acts or conduct of the plaintiff before such time arrived, in treating the defendant as its agent in the holding of the wagons after the defendant had disposed of his mercantile business in which he was engaged at the time he entered into the contract, could operate as a waiver of plaintiff’s said option to hold the defendant as a purchaser. This insistence is opposed to what was ruled by this court when the case was here on the former appeal. We now adhere to the views then expressed.

Written charge No. 4, given at the request of the defendant, correctly stated the law of the case as heretofore ruled, and was otherwise unobjectionable, and therfoie properly given.

This brings us to the consideration of the assignments of error on the cross-appeal.

To the defendant’s fifth plea as amended, and to the fourth and seventh pleas, the plaintiff filed special replications, numbered from 2 to C, inclusive. These replications were not made to these pleas separately, but to them as a whole. Neither of these replications deny the allegations of the pleas, except in part, leaving material allegations without denial and without confession and averment of matter in avoidance. A good replication to a plea should be either a traverse of the pica or a confession and avoidance. It may deny in part, and confess and avoid in part; but in any event it must answer every material allegation of tlie plea to constitute good pleading.- — H. A. & B. Ry. Co. v. South, 312 Ala. 643, 20 South. 1003; Whitchurst v. Byrd, 8 Ala. 375; Mason v. Crabb, 3 Stew. & P. 389. The replications do not deny the allegations in the pleas of the plaintiff’s waiver of its option to elect to hold the defendant as a purchaser, nor do the facts set up in the replication amount to a confession and avoidapce of the allegations of a waiver. The demurrers should have been sustained to the replications; and for the same reasons the demurrers should have been sustained to special replications 7 and 8, which were filed to the fifth and seventh pleas.

The objection to the admission of the verified account, on the ground that a notary public without the state cannot administer an oath, unless authorized to do so by the law of the state of his residence, is untenable. The authority of a notary public of another state to take and certify to affidavits in certain cases is provided for by our statute (section 1799 of the Code of 1896), which reads as follows: “Affidavits required in the commencement or progress of any suit or judicial proceedings may be taken without-this state before any commissioner appointed by the governor of this state, and the judge or clerk of a federal court, or judge of any court of-record, or notary public, who shall certify under their hands and seals'of office, if any.” To the affidavit in this case was attached the seal of office of the notary. This ivas sufficient authentication and certification under the statute. The account was itemized and verified, and was admissible in evidence under section 1801 of the Code. The suit was upon account, and it Avas averred in the complaint that the account was verified, and no counter affidavit was filed by the defendant under the provisions of the statute.

The Avalrehouse receipt, although signed and given by the defendant after the commencement of the suit, Avas nevertheless a circumstance to be considered by the jury'under the issues in the case. Tf, as a matter of fact, the defendant claimed the Avagons as his property at the time he gave the Avarehouse receipt, it was competent evidence to go to the jury; and it is of no consequence, ih determining the competency of the evidence, that it occurred subsequent to suit brought.

It is the better and safer practice to refuse charges which are purely abstract, or when argumentative; but the giving of such charges -does not, as a rule, constitute reversible error.

Charge 9, given at the request of the plaintiff, was erroneous, and should have been refused. Under the laAV of the case as stated above, if the plaintiff waived its option under the contract to hold the defendant as a purchaser of the wagons, then the plaintiff by a subsequent demand could not restore that right of option.

Charge 10, requested by plaintiff, should not have been given. If the defendant had stored the wagons in his own name, claiming them at the time as his own, this would not have estopped him from explaining by competent evidence his conduct in so doing. This the charge prevented him from doing.

There was no error in refusing charges 1, 2, and 3, requested by the defendant.

For the errors pointed out, the cause will be reversed, both on the direct and cross appeal.

Beversed and remanded.

Tyson, C. J., and Anderson and McClellan, JJ., concur.