63 So. 785 | Ala. Ct. App. | 1913
The complaint contained four counts, each of which asserted a breach of a duty imposed upon the defendant by a general deposit made by the plaintiff with him as a banker. Counts 1 and 2 were in assumpsit for the recovery of the amount on deposit; each alleging the defendant’s failure and refusal on demand to pay the same. Counts 3 and 4 were in
It is insisted in the argument of the counsel for the appellant that counts 1 and 2, each of which averred in effect that the sum deposited by the plaintiff with the defendant was subject to the plaintiff’s check or demand, Avere subject to demurrer on the ground that they Avere uncertain in failing to show whether such sum was payable only on presentation of a proper check or Avas also payable on a demand otherwise made. The
We are not to be expected to consider another ground which was assigned in the demurrers to counts 1 and 2 of the complaint when the only mention of it made in the argument of the counsel for the appellant is in an assertion that it was well taken. An assignment of error which is treated in this was by the party making it may be regarded as waived. — Richardson et al. v. Mertins, 175 Ala. 309, 57 South. 720.
It is contended in argument that the general charges, requested by the defendant as to counts 1 and 2 of the complaint should have been given because of the variance between the allegations and the proof in that each of those counts averred that the amount on deposit with the defendant to the plaintiff’s credit was subject to the latter’s check or demand, while the evidence without dispute was to the effect that it was subject to check only. , The contention as to the import of the evidence cannot be sustained. The plaintiff in his testimony, in speaking of the account of several years’ standing which he had had with the defendant as a banker, stated that he “made general deposits there, subject to check, .and drew checks on his bank.” This testimony would support the conclusion that the plaintiff’s deposit was a
In the third and fourth counts of the complaint the plaintiff claimed damages for the alleged wrongful conduct of the defendant in dishonoring a check drawn by the plaintiff as a general depositor. The defendant’s plea 2, Avhich was one of payment in the Code form (Code, § 5383, form 35), was not an appropriate answer to these two counts of the complaint. It is not to be supposed that that form of plea was intended to be used as an answer to a complaint claiming unliquidated damages for the commission of a tort. We are of opinion that that plea as an answer to counts 3 and 4 was subject to the demurrer interposed to it. If it was the purpose of the defendant to rely upon anything as an adjustment of the damages claimed by the plaintiff and a satisfaction thereof, such matter of defense should have been set up in a plea succinctly stating the facts relied on. — Code, § 5330.
The defendant’s plea 4 averred the breach of the warranty of the quality of cotton sold by the plaintiff to the defendant, a credit for the agreed price of which created the deposit alleged by the plaintiff, and that the difference between the agreed price of the cotton contracted for and the value of the cotton delivered was the sum of $3,000, with which amount the defendant charged the plaintiff, thereby making a balance against the plaintiff in favor of the defendant in the account between the two. This plea was in effect one of recoup
Reversed and remanded.