Warren & Lanier v. Cash

143 Ala. 158 | Ala. | 1904

McCLELLAN, C. J.

The 1st and 2nd grounds of demurrer to pleas 3 and 4 Avere not Avell taken: the pleas alleged warranty as to quality of goods sold, and a breach of it; and it was unnecessary for them to aver Iioav the warranty was made, or whether by writing or in parol. Parker v. McFerrin, 103 Ala. 132.

The other grounds of the demurrer — except the 9th, which is a general demurrer and need not be further mentioned,- — object to these pleas for their failure to state mere evidential facts, facts proper to be proved in respect of the pleas, but not necessary to be averred in them. This demurrer presented no tenable objection to the pleas and the court erred in sustaining it.

The 3rd and 4th assignments of demurrer to the 5th plea were of the same character as those considered last above to the 3rd and 4th pleas. The 1st and 2nd assignments against the 5th plea were bad for the reason that it is not. necessary to allege a. consideration for a modification of ai executory contract. — Cooper v. McIlvain, 58 Ala. 296. It cannot be said that defendants had or could haAre had t-lie benefit of the facts laid in these pleas either under the general issue or under special plea 2, so we cannot see that they were not prejudiced by the erroneous rulings on these demurrers.

The 7th plea was but a denial of a fact alleged in the complaint., viz: that the account sued on was due when the suit Avas brought. In order, therefore, to let in lls proof of the special condition upon which it was to become due, short of the six months’ credit that was to obtain if that, condition did not transpire, it was not necessary for the condition in question to be specially replied to the plea.

That condition, the fact which was to abridge the period of credit and bring the account to piaturity immediately upon its happening, was the discontinuance of business by “The purchaser.” “The purchaser” was the firm of Warren & Lanier. That firm did discontinue business before suit was brought, Warren selling out his interest and ceasing to have any interest in the business. In our opinion this was a “Discontinuance of the business by the purchaser” within the meaning of the stipulation, though Lanier and a new partner carried on business at the same place and with the same stock of goods, substantially.

Reversed and remanded.

Haralson, Dowdell, and Denson, J.J., concurring.