Cochran v. Burdick Bros., 61 So. 29

61 So. 29 | Ala. Ct. App. | 1912

Lead Opinion

de GEAFFENRIED, J.

Tbe only questions presented by this record arose on tbe pleadings, and it is to the consideration of those questions that this opinion is addressed.

1. Plea 2 was a special plea, setting up that the instrument sued on “is without consideration.” Under our system of pleading, the plea was sufficient. — Giles v. Williams, 3 Ala. 316, 37 Am. Dec. 692; Kolsky v. Enslen, 103 Ala. 97, 15 South. 558; Ragsdale v. Gresham, 141 Ala. 308, 37 South. 367.

2. Treating each count of the complaint as an action by the assignee of a negotiable instrument against its maker, pleas 3 and 4 were not subject to demurrer, because they do not aver that the plaintiff had notice of the defenses set up by them when he acquired the instrument sued on. “Prima facie the pleas, without averment of such notice, presented a good defense, and put it upon plaintiff to reply that it purchased the note in good faith, for value, before maturity, and without notice of the alleged infirmity.” — Ala. Nat. Bank v. Halsey, 109 Ala. 196, 19 South. 522.

3. The pleas under discussion were not demurred to upon the ground that the contract or agreement set up by the pleas as a defense was not in writing. In our opinion, they were not subject to such ground of demurrer, even if such a ground had been interposed to said pleas. The contract or agreement set up in said pleas does not, in our opinion, vary or contradict the terms of the instrument sued on. They simply set up an agreement going to the consideration of the bill, the subject of the suit. — Parker v. Bond, 121 Ala. 529, 25 South. 898; Gillespie v. Hester, 160 Ala. 444, 49 South. 580.

4. It may be that plea 3, which is a plea of failure of consideration, sets up a peculiarly improvident contract on the part of the payees of the bill. There is nothing, however, in the pleas indicating that all the parties were not sui juris or in any way incompetent to enter into any contract that was pleasing to them. There is nothing in the public policy of the state prohibiting such a contract, and it is violative of none of its penal laws. As was said by this court in the case of Couch v. Hutchinson, 2 Ala. App. 444, 57 South. 75, present term. “If there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting; and that their contracts, when entered into freely and voluntarily, shall he held sacred, and shall be enforced by courts of justice.” — Sir George Jessel, in Printing, etc., Co. v. Sampson, L. R. 19 Eq. 465. Plea 3 was not subject to any of the grounds of demurrer interposed to it.

5. Plea 4 is a special plea, setting up, in substance, that the bill or note sued on was given for certain goods delivered by the payees to the defendants, with the understanding that the payees “would guarantee that within a year from that date the defendants would realize a profit of 33 1/3 per cent, on the amount of the said bill, and that if said profit was not so realized said goods not sold should be taken up by the payees. Defendants allege that such profit was not realized, and that at the end of one year from said date the defendants returned all of said goods to the payee.” The sufficiency of a plea is not to be determined by what the pleader calls it, hut by the facts set out in the plea as a defense; and tested by that rule the plea was sufficient. While the plea does not aver that the payees received or accepted the goods when they were returned, it states sufficient facts to show that the defendants performed all that the contract set up in the plea required of them; and if they did so they exonerated themselves, regardless of whether the payees performed their part of the contract by accepting the goods or not. — Sheppard v. Furniss, 19 Ala. 760. It seems to ns that if the payees, in fact, failed to receive the goods when returned, this matter, with the reasons for so doing, should have been set up in a special replication to the plea. Plea 4 was not subject to the grounds of demurrer interposed to it.

6. We have above discussed all of the assignments of error insisted upon, except the assignment Avhich challenges the action of the court in rendering judgment against the defendants upon the verdict of the jury. The record contains a bill of exceptions, which recites that it contains substantially all of the evidence. It appears that the plaintiff introduced the'note sued on and rested his case. The defendants do not appear to have offered any testimony. The plaintiff and the defendants each asked, in writing, the affirmative charge. The court refused to give the affirmative charge requested by the plaintiff, but gave the affirmative charge requested by the defendants. The plaintiff (appellant here) does not assign as error for our consideration the action of the trial court in refusing to give the affirmative charge requested by him, or in giving the affirmative charge requested by the defendants. Neither did the appellant make any objection to the verdict of the jury, or in any way object to the rendition by the court of a judgment upon the verdict. The verdict was responsive to the pleas of the- defendants, and the judgment is in the usual and customary form. There was no motion for a new trial, and the appellant for the first time, in this court, complains of said judgment.

The above situation is due, not to any oversight of the appellant, but, as we apprehend, because it was his real purpose to stake his chances of a reversal upon the errors assigned by him on the rulings of the court upon the pleadings, and on the action of the trial court in rendering judgment upon a verdict which, while responsive to the defendant’s pleas, is not shoAvn to have been supported by the evidence in the case.

Conceding that the trial court committed a blunder when, under the undisputed evidence, it charged the jury that if they believed the evidence they must find for the defendants, nevertheless the verdict of the jury was in exact accord with the evidence under the law, as the law was given them in charge by the court. The jury, therefore, followed their plain duty when they returned a verdict in favor of the defendants. The judgment of the court for the defendants, being unobjected to, followed as a matter of course. The appellant properly reserved the right to have the action of the trial court in refusing to give the affirmative charge requested-by him, and in giving the affirmative charge requested by the defendants, to the jury reviewed by this court. This he refuses to do by striking from the record the assignments of error presenting those questions. It is therefore our plain duty to disregard everything contained in the hill of exceptions, except that it shows that no evidence was offered by the defendants; that the evidence offered by the plaintiff was, if believed, sufficient to have authorized a verdict in his favor for the amount sued for in his complaint; that he made no objection to the verdict rendered by the jury; that the verdict was responsive to the defendants’ pleas; and that no objection of any sort was made by appellant to the judgment .of the trial court pronounced upon the verdict.

The above being the situation, the appellant has waived his right to complain that the verdict of the jury was not supported by the evidence, and that the judgment, was therefore erroneous; and the record, on this subject, presents nothing to us for review.. — Woodrow v. State, 170 Ala. 87, 54 South. 191; Jones v. State, 2 Ala. App. 240, 57 South. 62.

Affirmed.

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Rehearing

ON REHEARING.

PER CURIAM.

On application for rehearing the case of Rice v. Gilbreath, 119 Ala. 424, 24 South. 421, is, for the first time in any of the briefs filed in the case, cited, and it is urged upon us by appellant’s counsel as an authority against the sufficiency of plea numbered three, referred to in our original opinion. The demurrer here, however, does not raise the point upon which a similar plea was there held bad. The sufficiency of pleas is to be tested alone by the demurrers interposed, and pleas will not be held bad on grounds not pointed out in the demurrer.

Application for rehearing overruled.