S. A. Williams & Co. v. Newman , 205 Ala. 86 ( 1920 )

Appellees sued appellant company, declaring on the common counts. Questions for review were reserved when the trial court sustained plaintiffs' demurrers to special pleas numbered 3, 4, and 6.

Plaintiffs' claim was for the price or value of 12 coats shipped by plaintiffs at New York to defendant at Birmingham; but, upon receipt of the goods, they had been returned by express to plaintiffs, and some of them had been lost in transit. The real controversy was about the goods that were lost, and defendant's effort in pleas 3 and 6 was to show that the express company was the agent of plaintiffs.

Plea 3 was in the alternative, and, on demurrer, was no better than its weakest alternative. It is alleged that defendant "with the consent or acquiescence of the plaintiffs returned (the coats) to the plaintiffs by delivering the same to a common carrier at Birmingham," etc., and "that said carrier was the agent of the plaintiffs by original direction by the plaintiffs to the defendant to make it such, or by subsequently accepting said package and treating said carrier as its agent." The effect of the plea, construed against the pleader, is to say that plaintiffs treated the express company as their agent as to the goods lost by the simple act of accepting from it the returned package containing that part of the goods which had not been lost (manifestly, a non sequitur), or it sought to estop plaintiffs to deny that the express company was their agent by defendant's mere conclusion that plaintiffs so treated it; but the rule is that every plea in estoppel must be certain in every particular and must allege the facts upon which the plea is predicated — must, if opportunity be afforded for pleading, allege every material fact which the pleader expects to prove. Jones v. Peebles,130 Ala. 269, 30 So. 564; 16 Cyc. 808. This plea does not measure up to this rule.

Pleas 4 and 6, like plea 3, were pleas of confession and avoidance. They confessed therefore that defendant did owe plaintiffs for the four coats alleged to have been lost from the custody of the common carrier, thereby confessing that the property in the coats had passed to defendant and that the carrier in undertaking to return them to plaintiffs in New York had been the agent of defendant. Defendant sought to avoid the liability thus confessed by alleging (plea 4) that plaintiffs had "prepared and executed an affidavit to be presented to said carrier claiming said four coats as their property," and further that defendant had relied on plaintiffs' claim "that said twelve coats were plaintiffs' property after they were delivered to said carrier, and after plaintiffs had prepared said affidavit of claim against said carrier," and (plea 6), in effect, that the parties agreed that the carrier was the agent of plaintiffs, that plaintiffs prepared a claim against the carrier and in aid thereof caused defendant to make an affidavit to the effect that the package delivered to the carrier contained twelve coats — a fact about which there was no dispute between plaintiffs and defendant — and further that defendant "relied upon said agreement as to said four coats being the property of the plaintiffs and said carrier being plaintiffs' agent on said occasion and forbore and did not make a claim for said four coats of said carrier."

The species of estoppel here invoked — quasi estoppel, it is commonly called — rests upon the principle that where a person has, with knowledge of the facts, asserted a particular claim, title, or right, he cannot afterwards assume a position inconsistent with such claim, title, or right, to the prejudice of another. 16 Cyc. 785, where many cases are cited. For aught we can see, bearing in mind the confession of the plea, defendant, as against plaintiffs, had no right to rely upon plaintiffs' claim against the carrier, nor does the plea disclose for what, to what end, or with what effect prejudicial to defendant, the latter relied on plaintiffs' claim. As for plea 6, it does not appear that the alleged agreement was a contract supported by consideration; it must therefore be treated on demurrer as the mere mutual assent to the proposition that the carrier was the agent of plaintiffs, not true, as the plea confessed, and as to which the plea alleged nothing beyond its confession. As in the case of plea 4, it is not made to appear that plaintiffs' affidavit, though prepared, was used to any effect, or at all. Still bearing in mind the confession of the plea, we are unable to see that the mere preparation of the affidavit furnished any reason why defendant should not have claimed of the carrier compensation for the coats that were lost nor does the plea show how or in what manner defendant has been prejudiced by his forbearance to make a claim against the carrier for said coats. Non constat, defendant may yet assert its rightful claim against the carrier.

Affirmed.

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