6 Div. 891. | Ala. | Apr 17, 1919
The action was by appellee against appellant in assumpsit. The complaint contained several counts. The first two were in general assumpsit, common counts, and were substantially in Code form. The others were in special assumpsit, as for breaches of contract in the sale of several lots of scrap iron.
There was no error in overruling the demurrers to any count of the complaint.
The counts were not defective in failing to allege from whom the account was due. The counts in this case are clearly distinguishable from those held bad in the case of Smythe v. Dothan Co.,
The record is confusing as to some of the given charges — as to whether such charges were requested by plaintiff or defendant. For this reason, we do not pass on them.
We are unable to see why it was not reversible error to refuse the defendant's requested charges to the effect that Powers had no authority to cancel the written contracts sued on. Whether these contracts were canceled or annulled, as testified to by plaintiff, were certainly material inquiries under the issues of set-off or recoupment. The evidence was without conflict that he (Powers) had no authority to cancel or annul the contract — as plaintiff claims he did.
The mere fact that he acted as defendant's agent in making the contract would create or carry with it no power to subsequently cancel or annul the contract. If the making and cancellation had all been parts of the same transaction, his authority to cancel might have been a question for the jury. But such is not shown to have been the case. The two appear to have been separate transactions. The plaintiff offered no evidence to rebut that denying power, and the record purports to contain all the evidence.
It results that the defendant's refused charges, as to the authority of Powers to cancel or annul the contract, should have been given.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.