Louisiana Lumber Co. v. J. W. Farrior Lumber Co.

63 So. 788 | Ala. Ct. App. | 1913

THOMAS, J. —

This suit was by the appellant against appellee for $133.16, declaring solely on the common counts in code form, on account, account stated, for goods sold and delivered, etc. To the action the defendant (appellee), in addition to the general issue, filed four special pleas, numbered, respectively, 3, 4, 5, and 6, which the Beporter will set out. Their many defects as answers to the complaint are so apparent from a casual reading of them that we deem it unnecessary to discuss at length the demurrers which pointed out some of these defects, and which, though overruled, should have been sustained. The pleas are incoherent, lacking in certainty, badly involved, and so confusing that we confess our inability to understand just what material issues they were intended to present. They aver, not facts, but mostly mere matters of evidence and the conclusions of the pleader from this evidence which he so sets ont in them.

• The first two (three and four) were intended, we presume, either as pleas of payment or pleas of accord and satisfaction. Merely sending the plaintiff a check for a certain amount, bearing an indorsement or notation upon it to the effect that it was sent in full payment of all demands due plaintiff, as alleged in the pleas, would not, in law, although the plaintiff accepted the check, and got it cashed, constitute payment in full, if the check was for a less amount than what defendant admittedly owed the plaintiff at the time of sending it. — Hodges v. Tennessee Imp. Co., 123 Ala. 573, 26 South. 490; Scott & Sons v. Rawls & Rawls, 159 Ala. 404, 48 South. 710. Hence the pleas are deficient as pleas of payment, in that from the evidence set forth the inference is that the amounts alleged to have been paid were less than what was really due. On the other hand, if we treat the two pleas as pleas of accord and satisfaction — ■ as alleging the payment of a less amount in accord and satisfaction of a larger amount claimed — they are deficient in not showing that the amount of defendant’s indebtedness to plaintiff was in dispute between them at the time of the acceptance by plaintiff of the less amount tendered to him in full compromise- and settlement of his whole claim.- Hand Lumber Co. v. Hall, 147 Ala. 563, 41 South. 78.

The fifth pled we are unable to classify at all. The first part avers mere matter of evidence to the effect that before this suit was brought (which is for $133.16, as said) the plaintiff sent the defendant a-statement of account, showing a balance due of only $13. We suppose, for want Of a better explanation, that this fact was intended by the pleader to be set up as an estoppel, though he does not so allege it, against the plaintiff to claim more than $13 now; and then the plea proceeds to set ont facts intended, we guess, to show that the $13 item on the account, going to make up the balance of the $13 due on the account rendered by plaintiff, defendant never owed him at all. The facts set iip in the first part of the plea in no sense constitute an estoppel; but are mere matters of evidence which might be introduced under the plea of the general issue as an admission by plaintiff against his interest, putting on him the burden of showing that it was the result of a mistake in making-out the account. The last portion of the plea, as to the $13 item of the account, if intended to allege facts to show that the defendant was never indebted at all to plaintiff for this item, was likewise admissible only under a plea of the general issue.

The sixth plea purports to be a plea of set-off, but we are unable to determine from its incoherent averments in Avhat the set-off consists. It, too, alleges matters of evidence and the conclusions of the pleader therefrom.

The court erred in not sustaining plaintiff’s demurrers to all these pleas, and the judgment is therefore reversed. It becomes unnecessary to consider the other questions raised on this appeal.

Beversed and remanded.