McAllister-Coman Co. v. Matthews

43 So. 747 | Ala. | 1907

SIMPSON^ J.

The original complaint in this case (by appellant against appellees) contained three counts, for account, account stated, and merchandise sold respectively. Count 4 was added by amendment, claiming for goods sold under the special agreement, which is set out in said count (and appeals in the statement of ibis case, omitting the list of goods.)

The first assignment of error insisted on is that the court erred in overruling the demurrer to the third plea, and the first ground on which it is claimed that there was error is that said plea purports to answer the entire complaint, and that this is no answer to the fourth count of the complaint, which is not- based upon an account, hut sets up a special contract. Said count claims for “goods sold by the plaintiff” under the terms of the written order, and, while the plea refers to it as the “account sued on,” yet the reference- -is so clearly to the same transaction and the same order, referred to in the count, that it cannot be said that it is no answer to it.

The next ground insisted on is well assigned, towit, that the allegation in the plea that the jewelry delivered was of a different kind fiom that which defendant^ had agreed to purchase, the same being of very little value, to-wit, $10, was the mere conclusion of the pleader. Consequently the court erred in overruling the demurrer to said plea.—Ala. Jail & Bridge Co. v. Marion County, 40 South. 100; Ala. State Fair, etc., v. Ala. Gas, etc., Co., 131 Ala. 257, 261, 31 South. 26; Stewart & Fountain v. Hargrove, 23 Ala. 430, 436; Carmelich v. Mims, 88 Ala. 335, 6 South. 913.

The demurrer to the fourth plea should have been sustained. Said plea does not set out the contract, either in woxds or by reference, nor does it allege that the showcase was not furnished, nor that the plaintiff had failed or refused to furnish it, but only that the plaintiff failed to ship it with the jewelry.

Referring to assignments 7 to 13, the witness was not shown to have any knowledge in regard to the character, quality, and value of the goods testified about. On the contrary, he is shown by his own testimony not to have any such knowledge. Hence it was error to allow him to testify as to the quality and value of the goods.—12 Am. & Eng. Ency. Law, pp. 424, 479, note 11; 17 Cyc. 112.

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

Tyson, C. J., and Haralson and Denson, JJ., concur.