Kenan v. Lindsay, 127 Ala. 270

Kenan v. Lindsay

127 Ala. 270 | Ala. | 1899

HARALSON, J,*

1. Tlie first three assignments of error relate to rulings of the court on pleas 3, A. and B. The judgment entry recites, that “after the evidence ■ ivas concluded, the defendant withdrew pleas No. A. and B.” The latter two of these pleas, are not copied in the transcript, and defendant Avaives. discussion of the rulings of the court on them. After the defendant voluntarily AVithdrew plea No. 3, he thereby eliminated from the case any consideration of matters set up in it, as a defense to the action, and the plaintiff cannot be heard to question the rulings of the court adversely to him on this plea. Its AvithdraAval left no room for him to complain, as he undertakes here to do, of the overruling of his demurrer to, and his motion to strike said plea. The defendant by AvithdraAving the plea, accommodated him in all he undertook to do by his motion and demurrer to get rid of the defense there set up.

2. Tiie court refused to strike pleas 6 and 7 to count A. of the complaint, and overruled the demurrers to them. These rulings are made the basis of assignments 4 and 5; but counsel does not in the brief filed, insist on these assignments,, further than to say, he thinks the rulings of the court Avere Avrong, which without more aat.11 be treated as a waiver of them.

3. The plaintiff’s counsel risks his case upon the contention, that the court erred in refusing to give for him as requested the general charge, and upon the refusal to give his charges numbered 5 and 6 (assignments of error 7 and S).

It is common learning, extracted from the books, that all express contracts resolve themselves into an offer by one of the parties and an acceptance by the other; that the act of acceptance closes the contract, and ordinarily nothing further is required to make the obligations effective; that tiie parties must understand alike; their contract must afford a complete expression of the meet*274ing of tlieir minds, and leave no material element unexpressed, and that the agreement becomes obligatory from the moment the minds of the parties meet. — 7 Am. & Eng. Encyc. Law (2d. ed.), 125; 134, 138; Hodges v. Sublett, 91 Ala. 588; Horst v. Moses, 48 Ala. 140; Sanford v. Howard, 29 Ala. 684.

4. Plea number 6, admitting the contract as set up in the 4th count, avers that it was further stipulated, that if anything else should come against -the cattle which the defendant purchased fi*om Kieree, he would ■not be liable to the plaintiff for the $400 (the debt of Kieree to plaintiff which defendant, as alleged, assumed to pay to plaintiff as a part of the purchase price of the cattle) ; and he further avers, that there were other claims on the cattle, one io R. Tillis for $80, which he paid, and one to John Fleming for $120. As to this latter claim, it may be here stated, that there is no proof that it .had existence or that defendant ever paid anything on it.

The 7th plea sets up, that the agreement was to pay the plaintiff the $400 out of the proceeds of the sale of the cattle, but upon conditions, that said sum should not be paid to plaintiff if there were 'any liens or incumbrances upon the property turned over to defendant, if he had any such liens to pay, and concludes by averring that R. Tillis had a mortgage on six head of the cattle, which defendant was forced to pay.

5. If the facts.set up in the 6tlu piea as to the contract entered into are true, it is manifest the plaintiff would not be entitled to recover, any more, at any rate, than the balance of the $400, after deducting such claims as defendant, under their contract was forced to pay. If the facts set up in the 7th plea are true, it may be admitted, that plaintiff would be entitled to recover nothing on the contract, as the contract, in such case, would be executory, the very existence of which would depend on the contingency or condition. — 7 Am. & Eng. Encyc. Law, 317, 118.

6. The plaintiff, and his witnesses, D. H. Morris and M. J. Kieree, agree as to the terms of the contract entered into between plaintiff, Kieree and. defendant as *275to the sale of the cattle; and by their evidence, nothing as to the terms of the agreement is left in indefiniteness or doubt. It was shown, that plaintiff had furnished Kierce $400 with which to buy the cattle, and he. was to be paid that sum out of the proceeds of their sale; they were pur chased,“¡some 40 or 50 of them in number,- — and placed in plaintiff’s lot; that Kierce owed defendant about $1,000, to collect which defendant sued out an attachment, and had it levied by the sheriff on the lot of cattle, and he took them in his charge; that on the morning of the 3d of May, 1898, the day after the levy, the plaintiff, defendant and Kierce met in plaintiff’s office in Geneva, and Kierce sold the cattle to defendant, with -the agreement, that they were to be delivered by the sheriff to defendant, who was to take and sell them, and out -of the proceeds of the money arising from their, .sale, pay to plaintiff 400 in payment of the debt of Kierce to him, and to give Kierce credit for the balance -on the-debt 'he owned defendant; that such was the agreement between the three parties to the trans.action in the presence of 1). H. Morris who was called as a witness thereto; that the cattle were afterwards delivered by the sheriff to defendant, who drove them off and sold them, and the levy by the sheriff was discharged and so returned to court. The return on the writ was in these words: “I have on this, the 3rd of May, 1898, discharged the levy on the foregoing property by the direction of the plaintiff, the plaintiff having informed me that the case was settled. G. W. Black, sheriff.” The plaintiff testified, that there was no condition such as set up in the plea; that the debt of Kierce to him was by the agreement satisfied and defendant owed him the same amount therefor. The evidence further tended to show, -that after the agreement in plaintiff’s office had been entered into, the parties walked out, and Kierce said: “Tillis has a mortgage on 8 of the cattle, and Fleming has a mortgage on some- of them,” when defendant replied, “if there are other claims against them, I wall have no more to do with them,” but afterwards, the defendant received the cattle from the sheriff and sold them; that they were worth $700 or $800, and defendant sold them, as he testified for $560,

*276The -defendant testified to substantially the -same facts as deposed to by plaintiff and hi-s witnesses, Kierce and Morris, as to the agreement of purchase and sale in plaintiff’s office. There is no- conflict in the -substance of their evidence as to that agreement. He then states: “D. H. Morris was called in to witness the trade. Then, we all started out of the door, and just as we got out of the door, Kierce said, that R. Tills had a mortgage upon some of the cattle, -and that John Fleming had a claim on some -of them. I then said, ‘Well, I will have no more to do with them.’ ” His evidence tended further to show, -as did the plaintiff’s, that without anything mo. e, the parties separated, -and defendant went and examined the cattle, and afterwards, came to where plaintiff and the -sheriff were standing at a pump in the town, and there had an interview with them, — -unnecessary to burden, the opinion with, further than, to say that in nothing that occurred, was the -original agreement of sale as perfected in the office of plaintiff, rescinded or modified in -any particular, but that, defendant and the sheriff, as the result of the interview, retired to the lot of plaintiff where the cattle were -and they were turned over to defendant. It is proper to state, further, that at this subsequent interview Kierce was not present, and knew nothing about it. Certainly, no rescission or modification -of the contract of sale -as made by him, could have been effected without him, even if plaintiff had consented thereto, which the evidence is lacking to show. The plaintiff’s evidence, -as well as that of"de= fendant shows, that defendant before he sued out the attachment, — two or three days before the transaction of bargain and sale between him and Kierce -and plaintiff, — was informed of Tillis’ mortgage on some of the cattle.

It will thus appear, that the plaintiff was entitled to the general -charge as requested by him, -and also to his charges 5 and 6, which the court refused,

Reversed and remanded,