Boyett v. Standard Chemical & Oil Co., 41 So. 756

41 So. 756 | Ala. | 1906

SIMPSON, J.

This was an action commenced by attachment on promissory notes, given for commercial fexdilkers. Common counts were afterwards added, and various questions and exceptions raised thereon, and finally the general charge was given in favor of plaintiff on the counts based on the notes, and judgment rendered for plaintiff (appellee).

A motion is made by appellee to strike the. bill of ex-' ceptions for failure to comply with rule 33, subd. 5, circuit court (Code 1896, p. 1201). While there are. some portions of the testimony which might- have been shortened, yet the greater part of that to which attention has been called -as having been unnecessarily set out in ex-tenso relates to tagging of tlie fertilizer, which was a material point in the case, and from the fact that the witnesses testified separately to separate and several portions of the goods taken out of the cars at different times, from all ol' which items of testimony the jury would have to make up-its verdict, it could not well have been condensed into a general statement, and, even as to the testimony in regard to the shipment of the goods, although the defendant admitted receiving the goods, yet this might liave. been important, in identifying the goods in regard to which each witness testified by reference to the cars and brands of the fertilizers. We cannot say that this was such a flagrant violation of the rule as to justify the striking of the bill of exceptions. As the court gave the. general charge in favor of the plaintiff as to the several counts based on the notes, and the verdict of the jury shows that they found for the plaintiff, on those counts alone, all rulings on the common counts or on objections to their being joined-in the same complaint, with the- counts on the notes, if error at all, was error without injury to the appellant.

The plantiff contends that the court was authorized to give the general charge in favor of the plaintiff, on the counts based on the notes, because the defendant was estopped by his pleadings from denying the validity of the notes; the defendant- haying interposed pleas to the common counts, setting up payment of the demands sued on, by the execution of the notes, and, under the rulings of the court, having gone to trial on said issue. “It is true that a party who has with knowledge of the facts assumed a particular position in judicial proceedings is estopped to assume a positon inconsistent therewith, to the prejudice of the. adverse party,” or, as otherwise expressed, “a party who defeats a judgment, by pleading or presenting a thing or judgment in one aspect, is estopped from giving it another, in the same or another suit, founded on the same subject matter.” — 16 Cyc. p. 796; Pres. Con. of S. v. Williams, 9 Wend. (N. Y.) 147; Ogden v. Rowley, 15 Ind. 56; State Nat. Bank v. N. W. P. Co., 35 Iowa, 226; Hooker v. Hubbard, 102 Mass. 239; Hill’s Adm’r v. Huckabee’s Adm’r, 70 Ala. 183, 188, 189; Caldwell v. Smith, 77 Ala. 157, 165; Lehman Durr & Co. v. Clark, 85 Ala. 109, 113, 114, 4 South. 651; Dickson v. McLarney, 97 Ala. 383, 392, 12 South. 378; Hodges v. Winston, 95 Ala. 514, 11 South. 200, 36 Am. St. Rep. 241; Taylor v. Crook, 136 Ala. 356, 378, 34 South. 905, 96 Am. St. Rep. 26. Yet that principle does not apply where the instrument sought to be set up by estoppel is void on account of the violation of penal statutes. “The same rule of public policy which forbids the execution of the contract forbids- the giving of a. quasi validity thereto.” — 15 Am. & Eng. Ency. Law (2d Ed.) p. 101. “Validity cannot be injected into an illegal contract or act by way of estoppel,” nor can “the defense of illegality be held to have been waived.” — Western U. Tel. Co. v. Young, 138 Ala. 240, 246, 36 South. 374. A sale of fertilizer without compliance with the statute is void, and no recovery can be had for the price, nor on any note given for the consideration thereof. — 3 Mayfield’s Dig. p. 791.

There was no error in overruling the demurrer to the fifth count. The agreement to pay an attorney’s fee is one additional to the regular obligation of the note, and there is no objection to embodying in one count a claim for all the attorney’s fees claimed in the suit, as it is all one subject, and no confusion arises therefrom.

There was no error in thé ruling of the court excluding the certified copy of register of fertilizers manufactured, as it wa.s merely negative evidence, and did not show that plaintiff had not filed a proper paper.

For the - error in giving the general charge for the plaintiff, the judgment of the court is reversed, and the cause remanded.

Weakley, C. J., and Tyson, and Anderson, JJ., concur.