Miller v. Mutual Grocery Co.

Count 2 of the complaint is to recover amount due "for goods, wares, and merchandise sold by plaintiff to the defendant or at their instance or request."

When liability is alleged on two or more grounds, stated in the alternative, the count is demurrable unless a good cause of action is shown under each alternative. Construed most strongly against the pleader, a sale at the "instance" of defendant may mean at his "solicitation" or "suggestion." Webster's International Dict.

Clearly a sale may be made to one person at the solicitation or on the suggestion of another, without the latter becoming the debtor. There must be a mutual agreement, express or implied, that the relation of debtor and creditor exist.

This count also fails to name the person to whom the goods were sold at defendant's instance. Reasonable certainty, such as will advise the defendant of the particular transaction he is called upon to defend, is an elementary rule of pleading. Where one person is being sued for goods sold to another, the name of the purchaser should be shown. There was error in overruling the demurrer to this count.

Count 4, however, is "for goods, wares, and merchandise sold by the plaintiff to one W. L. Guin, at the instance and request of defendants, for which goods, wares, and merchandise the defendants, at the time of making such request as a part thereof, agreed to pay plaintiff." This count meets the objections to count 2. No question of its sufficiency is presented in argument.

Count 5 adopts all of count 4 and adds that at the time of the sale defendants, through B. P. Watson, their authorized agent, drew a demand draft on defendants, payable to plaintiff, for the price of the goods, which draft was duly presented and payment refused.

We construe this count as based upon the original cause of action, the price of goods sold, and not upon the unpaid and unaccepted draft, as in count 6. The added averments give further details of the transaction. The count as a whole alleges in effect that plaintiff sold the goods to Guin on defendants' request and agreement at the time that they would presently pay for the goods, and accordingly their agent, in his own name, drew a demand draft on defendants in plaintiff's favor, the payment of which was refused. Under this count defendants were the debtors.

The draft given as conditional payment being dishonored, the original cause of action remained. The demurrer thereto was properly overruled.

The record shows no demurrer to count 6. The appeal is upon the record only. There was no nonsuit for adverse rulings, but a trial upon issue joined with jury and verdict for plaintiff. There is no bill of exceptions, and the oral charge of the court is not made a part of the record.

Injury is not presumed from error in rulings upon pleadings. Unless from the whole record it appears the error has "probably injuriously affected substantial rights of the parties," the cause will not be reversed because of such error. It is "incumbent upon an appellant to not only show error but also that he was probably injured thereby." Henderson v. T. C. I. Co., 190 Ala. 126, 67 So. 414; Fulton v. Watts, 209 Ala. 408,96 So. 184; Sup. Ct. Rule 45.

In the absence of a bill of exceptions setting out the evidence, we have no knowledge whether the evidence presented any issue on the defective alternatives of count 2 of the complaint. Neither are we advised what instructions may have been given thereon.

In Henderson v. T. C. I. Co., supra, it was held that we may look to the entire record, including refused charges, to determine whether there was probable injury. It appearing in that case that the court refused to charge out a defective count on request, this was held to indicate that there was evidence in support of the count, and the submission of the issue on the bad count worked probable injury.

In the present case the court refused the affirmative charge as to count 2. But here one alternative of count 2 was good. A refusal to charge out the entire count would be warranted by any evidence that the defendants were the purchasers of the goods. The court refused like charges as to counts 4 and 5, and by the same presumption there was evidence in support of these counts. For aught that appears, the plaintiff may have been entitled to the affirmative charge.

Taking the entire record, it rather appears that counts 4 and 5, added by amendment, were intended to amplify the case intended to be made by count 2, and presented the issues on which the case was tried.

Applying the rule that appellant must not only show error, but probable injury therefrom, we assume that if the evidence and the court's oral charge would have aided appellants' case, they would have been made part of the record in this court.

Affirmed.

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