Shearin v. Pizitz , 208 Ala. 244 ( 1922 )

Pleas 3 and 4 set up a contract in violation of sections 3345 and 6473 of the Code of 1907, intended to prohibit what is termed "futures"; that is, contracts for the purchase and sale of commodities to be delivered at a future day when the parties thereto did not intend that there would be an actual delivery. These pleas, however, are equivocal, as they attempt to avoid the contract set up without admitting or denying the existence of same. They do not admit the contract sought to be avoided, but attempt to avoid it upon the facts set up, they say, "if said alleged contract was made and entered into." "Pleas must either traverse or confess and avoid the matter of the action declared on. And the elements of confession, on pleas of that class, is as essential as that in avoidance." Smith v. Agee, 178 Ala. 627, 59 So. 647, Ann. Cas. 1915B, 129; Central of Georgia R. R. v. Williams, 200 Ala. 75,75 So. 401.

The defense, however, set up or attempted in these pleas was provable under the general issue. If they deny the allegation, that is but the general issue, or, if they be considered as setting up the illegality of the transaction, this fact could have been shown under the general issue, and the error in overruling the demurrer to same was without injury. Baker v. Lehman, 186 Ala. 495, and the authorities cited on page 503,65 So. 321, on page 324.

The modern rule in England and most of the American states is, if the contract is valid on its face, and the illegality does not appear from the plaintiff's proof, the illegality cannot be proven under the general issue, but must be specially pleaded (the rule followed by us in the former opinion now withdrawn). It is the rule, however, in Alabama and a few other jurisdictions to not enforce a contract in violation of the law and to deny the plaintiff the right to recover upon a transaction contrary to public policy, even if the invalidity of the contract or transaction be not specially pleaded and is developed by the defendant's evidence. 9 Cyc. pp. 740, 741, and notes. True, in the case of Baker v. Lehman, supra, the special pleas setting up the invalidity of the transaction were discussed on pages 500 and 502, but the court held in the "moreover" clause, on page 503 of 186 Ala., on page 324 of 65 South., that the invalidity of the contract was available under the general issue, and the question is stare decisis.

While these pleas are imperfect, the facts set up under either alternative, if proven, would be a good defense, the one alternative being but the general issue, and the other the illegality of the contract, but provable under the general issue and the fact that the trial court adjudged them sufficient and thereby compelled the plaintiff to take issue was of no injury to him, for the reason that the defendant in establishing either alternative made out a complete defense under the general issue, and the plaintiff was not therefore prejudiced by having to take issue upon a plea which did not set up a sufficient defense and have his action defeated because of proof of same. In other words, if a demurrer is overruled to a plea which imperfectly sets out a good defense, provable under the general issue, the special plea being bad because of form, rather than substance, and proof of the facts averred would establish a good defense, provable under the good plea, the overruling of the demurrer to said defective plea could not be injurious; but, if the trial court overrules a demurrer to a plea defective in substance, that is, the facts set up did not constitute a legal defense, the error could not be without injury, notwithstanding the facts so set up were provable under a good plea in the case, for the reason that the defendant would be entitled to a judgment upon proof of a plea which did not set up a complete legal defense. Beall v. Folmar,122 Ala. 414, 26 So. 1; Bice v. Steverson, 205 Ala. 576,88 So. 753; Maddox v. Chilton Warehouse Co., 171 Ala. 216,55 So. 93. It is suggested by counsel for the appellant that the rule of error without injury applies when the court erroneously sustains a demurrer to a plea, and not when it overrules a demurrer to a bad plea, citing Montgomery Eufaula R. R. v. Chambers and Abercrombie, 79 Ala. 338, and Cox, Hill Thompson v. C. W. R. R., 91 Ala. 393, 8 So. 824. This rule seems to be so stated in said cases, but this court has in the cases above cited established exceptions to the rule as stated in these two last cited cases. The Montgomery Eufaula R. R. Case, supra, and upon which is based the Cox, Hill Thompson Case, was dealing with a plea of contributory negligence, and which was not provable under the general issue, and proof of same would not establish a defense thereunder. We think that the eminent Chief Justice, in stating the general rule, without noting exceptions, and in giving the reason for same, overlooked a distinction between pleas which imperfectly set up a good defense and those which do not set up a sufficient defense, for, if a plea sets up a state of facts, though defectively presented, that will constitute a good defense provable under some good plea in the case, the plaintiff's action would not be defeated because of proof of a plea which did not set up a good defense as proof of the facts set up would be a good defense under the general issue, and whether especially pleaded or not. As we have above attempted to demonstrate, the pleas in the case at bar did not fail to set up a good defense or defenses, but set it up in an imperfect way, and proof of same established a complete defense, provable under the general issue, and the defendant would not escape liability because he proved a state of facts which did not constitute a legal defense, and there is no room for the reasoning against the present holding as well as the cases which have recognized exceptions to the rule, as set forth in the opinion in the Montgomery Eufaula R. R. Case, supra; that is, that a plaintiff should not be compelled to take issue on a bad plea, for, if the defendant proves same, he will defeat the plaintiff's action, as this rule is all right when dealing with insufficient pleas, but cannot be applicable when dealing with pleas which are sufficient, but demurrable because of some defect as to the method of presenting the facts.

Plea 5 seems to be elliptical and involved, but upon a careful consideration of the record we do not think that it was subject to any of the grounds of demurrer interposed to same.

It is difficult to pass intelligently upon the charges, as there is no bill of exceptions in this case, and this court will presume any state of evidence which would sustain the giving or refusing of an instruction to the jury by the trial court. Shafer Co. v. Hausman, 139 Ala. 237, 35 So. 691, and cases there cited. Whether some of the charges do or do not state correct propositions of law, in the absence of the evidence in the case, they may have been inapt or abstract, and the trial court may have had good reasons for the refusal of same.

The judgment of reversal is set aside, the former opinion is withdrawn, and the judgment of the circuit court is affirmed.

Affirmed.

McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.