Gibbony v. R. W. Wayne & Co., 141 Ala. 300

141 Ala. 300 | Ala. | 1904

SHARPE, J.

In the absence, of stipulation to the contrary, (me who/ voluntarily accepts and retains goods sold to him and delivered in part performance of a contract is nndetr legal obligation to pay for such goods, and though in a suit to enforce that obligation he may recoup damages sustained by him from any breach of the contract occasioned by the seller, he is not entitled to set up such breach in bar of the suit. — Dalton v. Bunn, 137 Ala. 175; Watson v. Kirby, 112 Ala. 436; Benj. on Sales, 690. This principle justifies the disposition, made in the trial court, of pleas 2, 3, 4 and 10.

A counter claim to he available in an action against the claimant must in general he owned by him in absolute right. — Jones v. Blair, 57 Ala. 457; Waterman on Set-Off, (2d ed.) 47; Forney v. Shipp, 49 N. C. § 527; Wood v. Davis, (Super. Cf.) 15 N. Y. Supp. 554; Proctor v. Cole, 104 Ind. 373. Variations of this rule may be allowable for the enforcement of certain equities existing in favor of a defendant and which would be otherwise irremediable, as to which seej Castlemam v. Jeffries, 60 Ala. 380; Cosgrove v. Cosby 89 Ind. 511; Carter v. Compton, 79 Ind. 37; Brewer v. Norcross, 17 N. J. Eq. 219. The damages sought to bei recouped by pleas 5, 6, 7, 8 and 9, respectively, are averred as having been sustained not bjr defendants, but by tlieir alleged principals, Benemelis & Co., who arei strangers to this suit, a.nd who for the, purpose of these pleas must be regarded as strangers to the alleged contract. For such purposes, the pleas of recoupment have effect to admit that the contract was made with' the defendants in their personal capacity regardless of whether their alleged agency was disclosed in the making of the contract. — Waterman on Set-Off, (2d ed.) 710. To this phase of the case is applicable the authority of Wood v. Davis, and Forney v. Shipp, supra, and also1 the principle declared in Waterman on Set-Off, § 47,wherein it ivsaid, “when an agent is liable on a contract made for the benefit of a third person by reason of net disclosing his agency, he can not avail himself of a debt due by the plaintiff to' such third person as a set-off.” Because of their failure to show the claim of damages averred in the pleas last-mentioned belonged to defendants those pleas were subject to the demurrer.

The1 court’s action in the giving of oral instruction to the jury and in refusing requested charges was in harmony with what has been said above and was free from error, and the same is true of the rulings' on matters of evidence.

Affirmed.