Dreyfus Bros. v. Corn Products Co. , 204 Ala. 593 ( 1920 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The averments of defendants' plea 3c, when construed most strongly against the pleader, as must be done on demurrer, shows there was no dispute between the parties as to the amount or justness of plaintiff's demand against the defendants, but that the dispute was in respect to the set-off claimed by the defendants. The defendants could not, without the consent of the plaintiff, apply a counterclaim or cross-demand to the admitted indebtedness due the plaintiff, and thereby reduce the amount of the plaintiff's demand, or create a dispute in respect to the amount due thereon. Wharton v. King, 69 Ala. 365. For this reason, on the facts stated in the plea, the cases of Hand Lbr. Co. v. Hall, 147 Ala. 561, 41 So. 78, and Bracken v. Owen Horse Mule Co., 195 Ala. 579, 71 So. 97, are inapt as authorities to sustain the sufficiency of defendants' plea.

For like reason the plaintiff's objections to the correspondence between the parties and the check set out in plea 3c and offered as evidence to sustain the defendants' plea 3 as amended were properly sustained. These objections were properly sustained for another reason. When the correspondence between the parties is considered as a whole, it clearly shows that the defendant's tender was not accepted as tendered, but was only accepted as a payment on the account. Reliance Life Ins. Co. v. Garth, 192 Ala. 91, 68 So. 871.

The questions presented by the rulings of the court on the demurrers to the defendant's pleas attempting to set up a violation of the act of Congress known as the "Anti-Trust Law" cannot be differentiated from the questions considered by the Supreme Court of the United States in D. R. Wilder Mfg. Co. v. Corn Products, etc., Co., 236 U.S. 165, 35 Sup. Ct. 398,59 L.Ed. 520, Ann. Cas. 1916A, 118, and on the authority of that case the ruling of the trial court on the demurrers must be upheld.

The demurrers to pleas 6, 7, and 8 setting up a violation of the statutes of this state prohibiting pools, monopolies, trusts, or combinations in restraint of trade were properly sustained for the reason that they do not aver that the alleged pool, monopoly, trust, or combination in restraint of trade was formed, carried on, or maintained in this state, or that the transaction out of which the plaintiff's cause of action arose occurred in this state. Anderson v. U.S., 171 U.S. 615,19 Sup. Ct. 50, 43 L.Ed. 300; U.S. v. E. C. Knight Co.,156 U.S. 1, 15 Sup. Ct. 249, 39 L.Ed. 325; State v. Phillips,50 Kan. 609, 31 P. 1079, 18 L.R.A. 657, 34 Am. St. Rep. 152; 27 Cyc. 910, B.

The defendant's plea 11 sets up the same defense as embodied in plea 3 as amended, and to which the plaintiff's demurrers were overruled; and plea 18 is in substance the same as plea 16 on which issue was joined. Therefore the ruling of the court on the demurrers to these pleas, if error, was without injury.

We find no reversible error in the record.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.