Berlin Machine Works v. Ewart L. Co.

63 So. 567 | Ala. | 1913

MAYFIELD, J.

— Appellant sued appellee on two promissory notes and on the common counts. The defendant pleaded the general issue and several special pleas.

Plea 4 was that there was no consideration] plea 6, that there was a total failure of consideration, and set out the facts claimed to constitute the failure] and plea 9 set up a breach of warranty in the sale of a machine to the plaintiff, and also sought to recoup damages on account of such alleged breach.

The plaintiff demurred to these pleas, and, its demurrer being overruled, filed a number of special replications to each of the special pleas, setting up a failure of the defendant to comply with a certain condition of the contract of sale of the machine, which was, by such contract, made, a condition precedent to the defendant’s right to rescind, or to set up a breach of warranty or a failure of consideration. The replications set out the contract of sale relied upon in the pleas, and set up the condition with which it was alleged that the defendant had failed to comply, and that a performance of such condition was a condition precedent to the special defenses attempted to be set up in the pleas.

The clause of the contract relied upon in the replications was as follows: “It is agreed that title to the property mentioned above shall remain in the consignor until fully paid for in cash, and that, in case of rejection of the property or failure to pay as stated herein, consignee shall at once return and deliver the property in good order to consignor f. o. b. Beloit, Wis., and that a retention of the property forwarded after thirty days from date of shipment' shall constitute a trial and acceptance, be a conclusive admission' of the truth of all representations made by or for the consignor, and void all its contracts of warranty, express or implied. It is also agreed that this contract is not modified or added to by any agreement not expressly stated herein, and that in case of failure to pay any of the payments as-herein stated, that all shall at once become due and payable, and that the consignor or its agent may (at its. option) without legal process take possession of and return to consignor at Beloit, Wisconsin, the above-described property, and that the expense of so doing-shall be paid by the purchaser.”

To these replications the defendant demurred, and, the-demurrers being sustained, plaintiff took a non-suit, and assigns as errors the adverse rulings on the demurrers, to the pleas and replications.

It is contended by appellee that it is only the rulings, on the demurrers to the replications which can be reviewed, and not the rulings on the demurrers to the-pleas. — Engle v. Patterson, 167 Ala. 52 South. 397, is. cited as authority to that effect. We cannot agree with counsel for appellee that such is the holding in that or-any other decision of this court. It is true that we have frequently held that on an appeal from a voluntary non-suit we would review those rulings only which superinduced the non-suit; yet we have never held that, where-several adverse rulings have superinduced the non-suit, we would review only the last ruling.

The facts and the record in the Engle Case, supra, were entirely different from the facts and the record in this case. It was said in the Engle Case that: “The-•judgment entry and the hill of exceptions in the present case each recite that the non-suit was taken in consequence of the adverse ruling of the court on the evidence, and we must consider only the rulings on the-evidence, and not those which did not cause the nonsuit. We therefore decline to consider the assignments relating to the rulings on the pleading. Nor can we consider-the action of the trial court in not allowing a continutnce of the cause. — Dundee v. Nixon, 95 Ala. 318, 10 South. 311.” In this case the judgment entry- — which, of course, must control us — recites: “The plaintiff, on account of the adverse rulings of the court on the pleadings and on the admission and rejection of evidence, takes a non-suit with a bill of exceptions, whereupon, it is ordered and adjudged by the court that a non-suit be now entered in this cause, and that the defendant go hence, and have and recover of the plaintiff all its costs in this behalf expended, for which let execution issue.”

It is true we find no adverse rulings on the evidence, and none are assigned as error; but this judgment entry no more shows that the non-suit was taken on account of the rulings on the demurrers to the replications than it does that it was on account of such rulings on the demurrers to the pleas. In fact, it clearly includes all the rulings as to the pleadings.

. Section 3017 of the Code provides for appeals in cases like this, and it reads as follows: “If, from any ruling or decision of the court on trial of a cause, either upon pleadings, admission or rejection of evidence, or upon charges to the jury, it may become necessary for the plaintiff to suffer a non-suit, the fact, point, ruling, or decision may be reserved for the decision of the Supreme Court by bill of exceptions or by appeal on the record as in other cases.”

. The record in this case, we think, sufficiently shows that the non-suit was the result of the adverse rulings as to both the pleas and the replications.

Pleas 6 and 9 were each defective and subject to the demurrer interposed. Plea 6 purports to be a plea going to the entire defense of each count, in that it claims to be a plea of entire failure of consideration, and sets out the facts, which, at best, only tend to show a partial failure of consideration.

Plea 9 is bad, in that it sets up a breach of warranty in the sale of the machine, and attempts to recoup damages in excess of the price of the machine sold or of the amount due thereon, and fails to set out the contract alleged to be breached, either in form or in substance, and fails even to show what the warranty was that is alleged to have been breached. This plea, being one of recoupment, and seeking judgment over against the plaintiff, should, of course, set forth the cause of antion as fully as if it was a count in an original complaint. In other words, it must state a good cause of action to support the judgment over against the plaintiff, which it wholly fails to do.

The pleas are also each subject to the objection that it attempts to combine two separate and distinct defenses in one plea; that is, failure of consideration, and breach of warranty. The defendant, under our liberal system of pleading, is entitled to set up different and even inconsistent defenses, but he must do so in separate pleas; he cannot combine two in the same plea.

The replications which set up the clause of the contract above set out, and the defendant’s failure to comply therewith, were good replications to both of the defenses attempted to be set up in pleas 6 and 9. We say this for the reason that On another trial the pleas may be amended so as to constitute good defenses. If the plaintiff has waived this clause of the contract, as is insisted by appellee - in its brief, the waiver should be set up in a rejoinder, or it should be alleged as a part of the plea, by way of or in anticipation of the replications. It was not necessary for the replications to negative such waiver.

This case, we think, is ruled by the same or similar principles declared by this court to govern in the case of Berlin v. Marbury, 146 Ala. 542, 547, 548, 40 South. 951, 953, where it was said, through Dowdell, J., now Chief Justice of this court: “With reference to the machinery sold and delivered by plaintiff to the defendant the contract contained the following clause, viz: 'In case of rejection, consignee will promptly deliver it to the consignor f. o. b. at Beloit, Wisconsin’ — and, further: 'A retention of the property forwarded after thirty days from date of arrival shall constitute a trial and acceptance, be a conclusive proof of the truth of all representations made by or for the consignor, and void all its contracts of warranty, express or implied.’ The guarantee following the specifications, and which is attached to the contract, concludes as follows: 'And we further allow ten days from arrivel on cars at Marbury, Alabama, of this machine as a trial period to demonstrate the above facts exist in this machine, and that the specifications have been fulfilled in every sense.” These provisions of the contract and guaranty must be taken together with the contract and guaranty, and so construed as to give force, and meaning, and operation according to the intention of the parties to the contract. To do this, as we understand and construe the provisions of the contract and guaranty, the guaranty applies only for the trial of the machine, and, upon a failure of the machine on such trial, authorized the rejection of it, and for this purpose the ten days from arrival of the machine on cars at Marbury were allowed. And in case of rejection after such trial, it became the duty- of the defendant to deliver the machine to the consignor, the plaintiff, 'f. o. b. at Beloit, Wisconsin,’ and the failure of the defendant to so deliver and a retention by it for 30 days after the arrvial of the machine at Marbury, by the express terms of the contract, fixed the liability of the defendant to pay the price of the machine.”

The provisions of the contract in question in that casé were almost identical with the provisions of the contract under consideration here, and the defenses there attempted to be set up against a suit for the purchase price were very similar to the defenses here resorted to. The one difference between the two cases is that in the Marbury Case the suit was on the contract itself, and not on the notes, while here the defendant entirely ignored the contract in its pleas or any express warranties, but alleged breaches of warranties, without sufficiently alleging of what the warranties consisted. For that reason, when plaintiff’s demurrers were overruled as to these defective • pleas, plaintiff set up the contract relied on in the pleas as a defense to the notes sued upon. This, however, does not affect the proper construction of the contract, nor of the duties and liabilities of the parties thereto.

Reversed and remanded.

Dowdell, C. J., and Anderson, and de Graffenried, JJ., concur.