Home Ice Factory v. Howells Mining Co.

48 So. 117 | Ala. | 1908

ANDEESON, J.

— The charge given by the court at the plaintiff’s request merely met the defendant’s special pleas, and instructed a finding for the plaintiff if the defendant bought “run of the mine coal,” notwithstanding it may not have been the best quality of coal, as set up in the said special pleas. If the defendant bought “run of the mine coal,” and received and kept it, he could not resist the payment of the entire purchase price, unless the coal was valueless; and there ivas no evidence that it was valueless. One witness testified that it was no better than “horse manure” for fuel, and that he would not give 10 cents for it, yet this evidence did not show that it was valueless. It is true one witness testified that it was not “run of the mine coal;” but the defendant kept it, and did not rescind the contract, and this fact could only abate the purchase price, and not defeat the plaintiff’s right to recover, unless the coal received and kept ivas valueless, which fact was not proven. 4 Mayfield’s Dig. p. 769, § 503. The charge did not ask a finding for any definite sum, simply instructed a verdict for the plaintiff under the facts hypothesized, and the trial court did not commit reversible error in giving same

The quality of the coal was an issue in the case, and the witness Boseman had testified as to the coal used by him for the Pure Milk Company, some of which was returned to the defendant. It is true this was not a part of the coal involved; but, if it was exactly the same kind of coal, the defendant should have been permitted to prove this fact, as this proof would have rendered the testimony of Boseman of some value as to quality, etc. The trial court erred in not permitting the defendant to prove this fact by the witness French.

The defendant had the right to prove the special pleas, which were not questioned by demurrer, and had the right-to prove any conversation with Howell, the president and general manager of the plaintiff, wherein he may have acknowledged getting an order not to ship the coal, and explaining why he shipped it, and whether or not he looked to the. defendant to pay the contract price, as avered in the third plea. Howell was shown to be the president and general manager of the defendant— the defendant’s alter ego, as distinguished from a mere agent; and any declarations or admissions made by him, relating to the subject-matter of the controversy, would be binding on the defendant, although subsequent to the negotiations.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ., coneur.