Jersey Ice Cream Co. v. Banner Cone Co. , 204 Ala. 532 ( 1920 )

The appellee sued appellant in assumpsit (common counts) to recover for ice cream cones sold by the appellee to the appellant for installment, periodic deliveries, to be paid for 30 days after date of invoices. The total number of cones to be sold and purchased was fixed at 1,000,000. The defenses asserted in short by consent were, besides a general traverse, payment, set-off and recoupment. There was no other pleading filed or noted; but the trial proceeded just as if appropriate issues or matters of avoidance had been interposed; and no point or objection appears to have been taken on the trial to the absence of pleading appropriate to the matters of traverse or avoidance upon which plaintiff relied in bar of the defenses or cross-action asserted by defendant. Under these circumstances, it cannot now avail the appellant that formal pleading asserting the matters in avoidance that are disclosed by the evidence was not filed.

There was evidence justifying a finding — necessarily implied in the conclusion that prevailed in the trial court — that the account or demand declared on belonged to the plaintiff, B. F. Wood, doing business under the name of Banner Cone Company. There was no denial of his ownership of the account in any form, and no evidence that he had disposed of the account.

In Greil Bros. v. Mabson, 179 Ala. 444, 60 So. 876, 43 L.R.A. (N.S.) 664, it was held:

"The general rule is that, where the performance of a contract becomes impossible subsequent to the making of same, the promisor is not thereby discharged. 9 Cyc. 627. But this rule has its exceptions, and these exceptions are where the performance becomes impossible by law, either by reason of a change in the law, or by some action or authority of the government. 9 Cyc. 629, 630; Burgett v. Loeb, 43 Ind. App. 657,88 N.E. 346. It is generally held that, where the act or thing contracted to be done is subsequently made unlawful by an act of the Legislature, the promise is avoided."

This rule, established here, applied to the advantage of the plaintiff upon which the war-time food regulations of our government operated, pending this contract, to restrict the means and process of producing the article of food manufactured by plaintiff, which it had engaged theretofore to furnish defendant.

There is no merit in the contentions for error made in the brief for appellant.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.