58 So. 959 | Ala. Ct. App. | 1912
One Crandall is the vice president of the Georgia Fruit Package Company, and appears to be its salesman and general manager. He made for the Georgia Fruit Package Company the above contract with Turnipseed and appears to have personally conducted all of the transactions which were had between Turnipseed and the Georgia Fruit Package Company with reference thereto.
The plaintiff, W. B. Burton, is also a manufacturer of six-basket crates, and does business at Montgomery, Ala., under the name of the “Burton Veneer Company,” He had no knowledge of the contract of Turnipseed with
Crandall, in addition to performing his duties as vice president, general manager, and salesman of the Georgia Fruit Package Company, also acts as a broker in selling basket crates for companies other than his own. In other words, as we understand the evidence, Crandall, with the knowledge and consent of the company of which he is vice president,. frequently makes a sale of fruit crates, for other and rival companies, receiving from other and rival companies a broker’s commission on the sales made by him as such broker for them. He was not interested in the business of W. B. Burton, and W. B. Burton had no connection whatever with the Georgia Fruit Package Company. Burton had an agreement with Crandall that he, Crandall, could, sell crates on commissions as a broker for the Burton Veneer Company, the Burton Veneer Company to receive 11% cents for each crate sold by him, and Crandall to receive as his commission for making such sales any excess. The Veneer Company, of course, had the right to reject or accept any order sent to Burton by Crandall as such broker, and Burton was liable to Crandall for commissions only upon the orders which were accepted and filled by the Burton Veneer Company. If the Veneer Company accepted an order sent by Crandall, the goods were shipped to the party named in the order as their purchaser, and the credit was extended to the party to whom they were shipped and not to Crandall.
During the peach season of 1910, Turnipseed became badly in need of crates. He made continuous calls upon the Georgia Fruit Package Company for the shipment of crates under its contract, and on one occasion went in person to Ft. Valley, Ga., and saw Crandall and other officers of the company, and urged upon them the
Undoubtedly, so long as the principles laid down by the Supreme Court of Alabama in the case of Burton Lumber Co. v. Wilder, 108 Ala. 669, 18 South. 552, in which case the opinion was written by the late Mr. Justice Head, remain undisturbed, under the undisputed-facts in this case, and every reasonable inference which can be drawn from them, the plaintiff is entitled to recover of the defendant the value of the crates which were
The second count is as follows: “(2) Plaintiff claims of the defendant the further sum of f.945, with interest thereon from the 16th day of July, 1910, for that the defendant received from the plaintiff, took into his possession, and used for his benefit 7,500 fruit crates of the aggregate value of f945; hence this suit.” The defendant pleaded the general issue to the complaint as a whole with leave, by agreement, for either party to give in evidence all matters which might have been given in evidence under any properly drawn special plea. In other words, the issues, under the agreement as to the pleading, covered every possible defense which the defendant could have legally interposed to the-complaint or either count of the complaint, and the bill of exceptions shows
At the conclusion of the testimony, the trial court, at the written request of the plaintiff, charged the jury that, if they believed the evidence, they should find for the plaintiff on the second count of the complaint. There was a general verdict in favor of the plaintiff, and the judgment of the court followed the verdict. It is contended by the defendant that count 2 does not state a cause of action against the defendant for money had and received, because it failed to allege that the crates which the defendant received from the plaintiff were the property of the plaintiff. Says the defendant: “It will be noted that the count does not aver any fact to show that the plaintiff was the owner of the fruit crates. For aught that appears in the count, the plaintiff had no interest whatever in these crates. For aught that appears, the plaintiff may have been a mere agent or he may have stolen them. The count not only fails to show that the plaintiff was the owner, but it fails to show even a possessory interest in the crates.” If the defendant had seen proper to demur to count 2, and by its demurrer had properly raised the above objections to the technical sufficiency of the count, this court might reach a conclusion opposite to the one at which it has arrived on the questions now presented.
When a defendant demurs to a complaint, the allegations of the complaint are to be construed most strongly against the pleader. When, however, as in this case, be does not demur to the complaint, but appears and pleads to it, and the case is tried, under the pleadings, on its merits, an entirely different rule prevails. “A defect in ■pleading is aided, if the adverse party plead over to or .answer the defective pleading in such a manner that an
Where there has been a pleading over or answer to a defective complaint and a verdict, such defective complaint is also in some cases aided by intendment after verdict. “The doctrine on this subject is founded on the common law, and is independent of any statutory enactment. The general principle upon which it depends appears to be that where there is a defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection on demurrer, yet, if the issue joined be such as necessarily required, on the trial proof of the fact so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission'is cured by the verdict.” 1 Chitty on Pleadings (16th Ed.) p. 705.
It is undoubtedly true that it is the settled law of this state that a judgment for plaintiff will be reversed where the facts appear on the face of the complaint, and show that no substantial cause of action was disclosed, though the complaint was not demurred to. 3 Mayfield’s Dig. p. 1174, subd. 875; St. Clair Co. v. Smith, 112 Ala. 347, 20 South. 384; Kelly v. Burt, 132 Ala. 235, 31 South. 512. When the complaint is sufficient to support a judgment, a motion in arrest of judgment after verdict will not be granted, although the complaint may have been subject to demurrer properly filed.—O’Neal v. Simonton, 109 Ala. 167, 19 South. 412; Gordon v. Hood, Minor, 122.
It is, we think, undoubtedly true that a complaint which is sufficient to support a judgment after verdict, although .it may have been subject to demurrer if prop
Possession of personal property is prima facie evidence of title thereto.—Cobb v. Bryant, 86 Ala. 316, 5 South. 586. Construing the count, therefore, as in our opinion it should be construed on this appeal, the count alleges that the plaintiff was the owner of the crates, and, this being true, it is evident that the count is sufficient to support a judgment after verdict.
After a careful examination of this record, we have been able to find no error of which the defendant has a right to complain. The judgment of the court below is therefore affirmed.
Affirmed.