112 So. 138 | Ala. | 1927
It is a complete defense to an action on a promissory note that one or more of the items entering into the consideration of the note were based upon sales or other transactions in violation of law. Wadsworth v. Dunnam,
Logical consistency would seem to require that the illegality of one or more items of a stated account should render the agreement to pay it invalid, and defeat the action in toto. The principle was settled long ago in this state that, where the illegal items are separate and distinct in description and in price, the plaintiff may separate the legal from the illegal items, and sue for and recover the price agreed to be paid for the former. Leverett v. Garland Co.,
The defense set up in plea C to count B was, if properly pleaded, a good defense to that count.
The plea necessarily imports a sale from plaintiff to defendant. It was not necessary for the plea to aver what company manufactured the fertilizer. The second and fifth grounds of the demurrer are therefore bad. The third and fourth grounds are but general demurrers, and therefore invalid. Evitt v. Lowery Banking Co.,
If, therefore, there was any defect in the plea, it was not pointed out by any ground of the demurrer, and the demurrer must be held to have been improperly sustained; and, since defendant's deprivation of that defense was necessarily prejudicial, the error must work a reversal of the judgment. Other questions need not be considered.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.