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plaintif and Phalin & Co. showing, among The letter of plaintiff to Phalin Lumber other things, that on July 23, 1920, the latter Company, dated September 17, 1920, and recompany wrote plaintiff that it inclosed- ferred to in the last quoted letter, follows: "a letter from the Tuscaloosa Lumber Com- “Can't you now. arrange to let us have repany showing that their [there) were 2 rolls mittance covering the two shipments of fabric of roofing short on your shipment in Penn. roofing to the Tuscaloosa Lumber Company? No. 500418. You will note the Tuscaloosa You sent us a freight acceptan for $932.00 Lumber Company reports receiving the roofing due Sept. 22d on one shipment but the last in car A., T. & S. F. No. 9183, and the trans- shipment of $387.50 covering fifty squares of fer may account for this shortage. We in- individual green shingles has not been attendclose our 90-day acceptance for the $952, and ed to, although it is past due since July 30th. will thank you to pass same for our credit. Won't you kindly arrange to take care of We also inclose the paid expense bill and that item within the next few days.” shall let you know the amount of freight on the roofing which arrived yesterday so that you

The Phalin Lumber Company wrote plaincan figure up same and see if we are not enti- tiff, the letter being dated "10—21–1920," tled to a refund. You will note we are charg. as follows: ed with a minimum freight of 30,000 pounds,

"We are obliged to return our note given we would have been charged considerably less on these two shipments had they come out in you which came due yesterday. Business has

gotten in such shape that we are unable to sell one shipment as ordered by us.

Due to our inability to get equipment to any stock and we must ask for more time on move our lumber and the dreadful decline in

our paper. We will pay same but cannot give price, we are obliged to send an acceptance you any definite time when our obligations at this time which shall be honored when due. will be met. Are in hopes that business will Shall mail a check for the last shipment as pick up after election and if it does we will soon as it is delivered to the Tuscaloosa Lum- be able to send you some money to apply on ber Company and checked up, the shipment has our past due paper.” just arrived over the L. & N.”

Again, on November 19, 1920, plaintiff urged Plaintiff, on July 28, 1920, acknowledged the Phalin Lumber Company as follows: this letter as follows:

"Your favor of recent date in regard to your “In reply to your letter of July 23d, concern

account and that of the Tuscaloosa Lumber ing the shipment made by us to the l'uscaloosa Company received, and we note that you had

a thorough understanding with our Mr. Doyle and we are willing to accept your trade ac

in regard to conditions and under the circumceptance on 90 days' time.

“We also note what you say in regard to the stances we are willing to co-operate with you shortage of four rolls of the two-ply roofing. to the extent of our ability, and take note to We note, however, that the expense bill which mature May or June 1st for the total amount

of your indebtedness. you sent us does not show this shortage and

“The three invoices, one charged to the Geo. we would ask that you kindly have this attended to by the freight agent and return it W. Phalin Lumber Company and two to the to us, so we can file claim. We will then also Tuscaloosa Lumber Company, amount in all have 'a check made as to the freight charges much if you would send us your note for that

to $1,501.8 80 we would appreciate it very and if there is a refund coming to you, you

amount by return mail same to mature if poscan rest assured it will be taken care of."

sible on May the 1st. The record shows a letter from plaintiff to ing this will enable you to take care of mat.

"Thanking you for your attention, and trust. Phalin Lumber Company, dated July 3, 1920, ters without any financial inconvenience or as follows:

embarrassment, we are." "Your favor of the 29th inst., at hand, and

The Phalin Lumber Company, by letter we note you are inclosing note because just at this time you are unable to take care of it, dated November 23, 1920, replied to the fore. having run short of ready cash.

going letter, as follows: "We have filed your note away and given “We have your letter of the 19th in regard you credit for it and same will be sent to your to our account with you, and wish to thank you bank upon maturity date which will be Aug. very much for giving us this additional time. 28th."

We are inclosing our note for $501.80 due May

1, 1921, and one for $1,000.00 due June 1, The Phalin Lumber Company wrote plain- 1921, which we are sure we will be able to tiff, the letter being dated "921-1920," as take up by that time.” follows:

Plaintiff's reply to the last-quoted letter "TVe have yours of the 17th and note same. Will take care of our obligations just as soon

was dated November 29, 1920, and follows: as we possibly can. The first note given you "This letter it (is) to acknowledge the two is past due here at our bank and we will take notes which you recently sent us, the one for it up next Monday; had a bad break at our $1,000 and the other for $501.80 covering not planer which has held us up for two weeks and only your account but also that of the Tuscawith the bad conditions in the lumber market loosa Lumber Company. is [it] has made us hard up. Just as soon as “We have given you proper credit and are we commence moving stock from our planer inclosing therewith the original note for $154here we will take care of our bill."

30 which you sent us properly canceled.

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(100 So.) *Thanking you for your attention and trust- , issue of fact for the judge trying the case ing that you can take care of the new notes without a jury. rben they mature without any inconvenience

[6] The mere taking of the notes was not or embarrassment, we are."

sufficient for payment, extinguishment, or The record further shows the nonpayment novation as to the original debt; without and protest of these notes, the bankruptcy more, the presumption of the law is that the of the maker thereof, the G. W. Phalin Lum- same were taken conditionally, on payment ber Company, the proof of claim, allowance, only. McWilliams v. Phillips, 71 Ala. 80. and payment thereon of a small dividend The evidence tended to show the Lumber ($150) by the trustee in bankruptcy, of the Company, the defendant, was worthy of credGeo. W. Phalin Lumber Company.

it given, and that the Phalin Lumber ComThe question recurs: Did the giving to pany was not so regarded by plaintiff before plaintiff by the Phalin Lumber Company of and at the time the sale was consummated its notes constitute payment or novation of by the shipments and receipt of same by the the original debt against defendant?

defendant. The financial condition and busi. [2, 3] The essential characteristics of a no

ness association of the Tuscaloosa Lumber ration were dealt with in Hopkins v. Jordan, Company and the Phalin Lumber Company 201 Ala. 184, 77 South. 710. There was were known to the debtor, yet the indebtedproof required that the creditor, the original ness of the Phalin Lumber Company to the debtor, and the promisor intended to accept | defendant company, and the terms of an the new promise in discharge of the original agreement or understanding between the two debt-that the creditor, in accordance with latter companies by which the defendant is this intention, agreed to the new promise in said to have received the materials purdischarge of the original debt. This follows chased from plaintiff, and to have given the from the settled rule that novation is never Phalin Lumber Company a credit on their to be presumed, and that it must appear that account for the purchase price thereof, were the original debt has been extinguished facts unknown to plaintiff when the goods Armstrong v. Walker, 200 Ala. 364, 76 South. were delivered to and received by defendant. 280; Wallace v. Myrick, 1 Ala. App. 572, 55 In other words, the defense, for all practiSouth. 259; Mills v. McMillan, 78 Fla. 294, cable purposes, is to carry out, at the ex82 South. 812; Montgomery B. & T. Co. v. pense of the plaintiff, the agreement between Jackson, 190 Ala. 411, 67 South. 235; Mc defendant and the Phalin Lumber Company Williams v. Phillips, 71 Ala. 80; 29 Cyc. for the discharge of the latter's debt to the 1123, 1130, 1131; Mwonnell v. Ala. Ins, former, and it is a conceded fact that the Co., 85 Ala. 401, 5 South. 120. He who as- plaintiff was not a party to such arrangeserts novation or payment has the burden of ment between defendant and the Phalin Lumproving that this was the fact and intention ber Company. The testimony of plaintiff, of the parties. McWilliams v. Phillips, 71 and its correspondence, rebuts such agree

ment on its part, and the mere acceptance In Barnes v. Hekla Fire Ins. Co., 56 Minn. of the notes did not amount to accord and 38, 41, 57 N. W. 314, 315, 45 Am. St. Rep. satisfaction, payment, or novation of the orig. 438, 410, it is said :

inal debt of the defendant to the plaintiff.

[7] Did the proof and filing of the claim "It is frequently the case that the creditor consents to the arrangement as a favor or for against the bankrupt estate of Phalin Lumthe convenience of his debtor; and we appre

ber Company, and acceptance by plaintiff of bend it would be a surprise to the parties, as

a small dividend, have the effect of a novawell as an injustice, in many cases, if it were tion or payment of debt as to the defendheld to operate as a release of the original lia- ant? We think not. There was no election bility; and therefore it should distinctly ap- of inconsistent rights or remedies, or estoppear, from the express terms of the agree. pel by suit, that would defeat plaintiff's judgment, or as a necessary inference from the ment. Mobile Towing & Wrecking Co. v. situation of the parties, and the special cir- | Hartwell, 208 Ala. 420.1 Its failure to prove cumstances of the case, that such was the in- the claim against the bankrupt estate of the tention and understanding of the parties, of Phalin Lumber Company would have renwhich the creditor was chargeable with notice, and this is the generally accepted doc- dered plaintiff liable for the failure of due trine of the courts. 11 Am. & Eng. Ency. of diligence to the original debtor for any divLaw, 889, 890."

idends that might have been received in

reduction of the original debt. There is anal[4, 5] When there is no express contract of novation, the declarations and acts of the ogy to be found in Buck v. Gimon, 201 Ala. creditor must be inconsistent with an inten-019, 621, 79 South, 51; Anderson v. Timber: tion to hold the original debtor. The evi- lake, 114 Ala. 377, 389, 22 South. 431, 62 Am. dence must clearly show or be tantamount to St. Rep. 105; McWilliams v. Phillips, 71 Ala. an agreement to release the original debtor 80, 83; May v. Sharp, 49 Ala. 140, 142; of liability. If the testimony is in conflict Powell's Allm'r v. Henry, 27 Ala. 612, 615, as to whether the plaintiff had accepted the and Russell v. Hester, 10 Ala. 535. notes of the Phalin Lumber Company in dis

The record failing to show that the plaincharge of defendant's liability, that was an tiff creditor agreed to accept the Phalin Lum

1 95 South, 191.

Geo tbe

Ala. 80.

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ber Company'y notes in satisfaction and dis- "Plaintiff claims of the defendant the sum of, charge of the pre-existing original debt of to-wit, twenty-five thousand dollars as damdefendant to plaintiff, the judgment of the ages for an assault and battery committed by circuit court is affirmed.

defendant's agent, to wit, one Bob Milligan, Amrmed.

who was then and there acting within the line

and scope of his employment, on plaintiff on, ANDERSON, C. J., and SOMERVILLE and defendant's mines at or near Coalmont, Shelby

to wit, the 8th day of April, 1922, at or near BOULDIN; JJ., concur.

county, Alabama. And plaintiff avers that the said, to wit, Bob Milligan, who was then and there acting within the line and scope of his employment, kicked plaintiff, shot hole through

plaintiff's trousers with pistol, and struck BROOKSIDE-PRATT MINING CO. v.

plaintiff on forehead with pistol, cutting gash BOOTH. (7 Div. 426.)

in plaintiff's forehead, to wit, three and a half

inches long and to the bone. Plaintiff avers (Supreme Court of Alabama. April 17, 1924. that by reason and as a proximate consequence Rehearing Denied May 15, 1924.)

of said assault and battery described above,

plaintiff was greatly wounded and bruised on 1. Pleading mol-Subsequent pleadings must his head and body, and was caused to suffer refer to or support complaint and plea. great mental pain and physical pain, and was

Whatever the parties respeetively allege in subjected to great humiliation, indignation and their subsequent pleadings must be referred shame, and was made sick and was caused to to, fortify, and support, respectively, the com- lose much time from his work, all to plaintiff's plaint or declaration of plaintiff and the plea damage as aforesaid; wherefore plaintiff sues.” of defendant. 2. Pleading Om 173, 183, 184, 185–Requisites

Pleas D and E are as follows: of pleadings subsequent to complaint and plea “Plea D. For further plea and answer to stated.

each count of plaintiff's complaint says: That The replication must so answer a plea as the defendant on the occasion complained of to support the complaint, and the rejoinder was operating a commissary at Coalmont, Ala., must so answer the replication as to support for the sale of divers goods, wares and merthe plea, and likewise the surrejoinder must chandise, and the plaintiff on the said Sth day support the replication, the rebutter the re- of April, , 1922, came to and entered defendant's joinder, and the surrebutter the surrejoinder. commissary as aforesaid, which was located in 3. Assault and battery w 15Merchant may the town of Coalmont, Ala., and failed or refus

withdraw invitation to trade and thereafter ed without legal cause or good excuse, to immeeject person from whom invitation with diately leave on being ordered or requested to drawn.

do so by the duly authorized agent of this deMerchant or storekeeper may withdraw in- further avers that its said agent Milligan em

fendant, to wit, Bob Milligan; and defendant vitation to trade from such persons as he may ployed no more force than was reasonably necdesire, and thereafter, if such persons come into his store or commissary, he may eject essary in ejecting or attempting to eject the them by the use of no more force than is rea

plaintiff from defendant's said commissary." sonably necessary if such persons refuse to

"Plea E. For further plea and answer to leave after notice and a reasonable time in each count of plaintiff's complaint, separately which to do so.

and severally, defendant says that for some

years prior to April 8th, 1922, and on said 4. Licenses 58(1)-Gratuitous license to go date defendant was operating a commissary on lands of another is revocable at will. at which it sold divers wares, goods and mer

Every gratuitous license to go upon or pass chandise at Coalmont, Ala., that within six over the lands of another is revocable at the months prior to the occasion complained of to mere will of the person granting it.

wit, April 8th, 1922, the plaintiff had been warn

ed to stay off the premises of the defendant at · 5. Assault and battery Om2-Licensee wrong. Coalmont, Ala. by defendant's duly authorized

fully ejected may recover for an assault com- agent, but that notwithstanding such warning mitted upon him,

plaintiff on said April '8th, 1922, voluntarily One rightfully in the place at the time when came on and into the defendant's said comhe is ejected therefrom may recover for the as- missary at Coalmont, Ala., and defendant avers sault committed,

that after plaintiff came into said commissary

be was requested by defendant's duly authorAppeal from Circuit Court, Shelby Coun- ized agent, Bob Milligan, to leave the premises

of said commissary, and plaintiff failing and ty; W. M. Lackey, Judge.

refusing to leave within a reasonable time Action for damages for assault and bat- after such request, defendant's authorized tery by John T. Booth against the Brook- agent as aforesaid ejected or attempted to eject side-Pratt Mining Company. Judgment for the plaintiff from said commissary, using no plaintiff, and defendant appeals. Reversed more force than was reasonably necessary to

do so." and remanded.

The second count of the complaint is as Leeper, Haynes & Wallace, of Columbiana, follows:

and Tillman, Bradley & Baldwin and John For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 So.) S. Coleman, all of Birmingham, for appel- , necessary, under the circumstances of the lant.

particular case, if such persons refuse to Longshore, Koenig & Longshore, of co- leave after notice and a reasonable time in lumbiana, for appellee.

which so to do. There is slight analogy in

Ashworth, Adm'r, v. A. G. S. R. R. Co. (Ala. THOMAS, J. The suit was to recover Sup.) 99 South. 191. damages for an assault and battery alleged The rule is stated in 2 R. C. L. p. 557, $ to have been committed by defendant's 36, as follows: agents upon plaintiff while he was at defend

"The right of a person to protect his propant's commissary. The trial was had on erty necessarily includes the right to eject the second count of the complaint to which persons trespassing thereon. To permit all demurter was overruled. The assignment persons at their will to enter and to remain of error challenging the ruling on demurrer in the house or the close of another, would is not insisted upon. Georgia Cotton Co. v. practically destroy the dominion of the owner Lee, 196 Ala. 599, 72 South. 158.

over his property, and would render it almost

useless as well as worthless. Such has never The second, third, and fourth assignments been the law, and so long as there is such a of error challenge the sustaining of demur- thing as individual ownership of property, it rers to pleas A, B, and E. Demurrers were is not probable that it ever will be. However, overruled to pleas C and D. The insistence in an action for assault and battery a plea of of appellant is that the latter pleas were justification, based on the right of the defenddrawn under section 7827 of the Code of ant to eject a trespasser, is good only where 1907, while the pleas to which demurrers the ejection wag no more than that which was

it appears that the force used in effecting were sustained are not so drawn.'

reasonably necessary under the circumstances [1, 2) A rule of good pleading long prevails of the particular case.” ing is that whatever the parties respectively allege in their subsequent pleadings must The right of the occupant of a house or be referred to, fortify, and support, respec- store-and other public or semipublic places tively, the complaint or declaration of the 4to control it and admit whom he pleases to plaintiff and the plea of the defendant. The enter and remain therein, and to expel thereobservance of this rule is imperative to pre- from "any one who abuses the privilege rent an entire change of the “foundation of which has been given,” is well supported by the action and of the defense" by “successive the authorities. Of the exercise of this stages of the pleadings" and thus defeat right, it is said in 2 R. C. L. p. 559, $ 37: the primary object of pleading. That is to

* While the entry by one person on say, the replication must so answer the plea the premises of another may be lawful, by reaas to support the complaint, and the rejoin- son of express or implied invitation to enter, der must so answer the replication as to sup- his failure to depart, on the request of the port the plea. In the same manner, the sur owner, will make him a trespasser and justify rejoinder must support the replication, "the the owner in using reasonable force to eject rebutter the rejoinder, and the surrebutter him. The most common cases involving the the surrejoinder.” The result of this rule, as right of an owner to eject one from his premsaid by Mr. Gould, the process being thus ises who entered lawfully are those where a

des

person enters a hotel or business place or conducted, is that which is last pleaded on

the conveyance of a common carrier, and either side necessarily goes in support of while therein forfeits his right to remain by that was first pleaded on the same side. his misconduct or failure to comply with the Ex parte Hines, Sir. Gen. (Hines v. McMil- reasonable rules and regulations. On the forlan), 205 Ala. 17, 87 South. 691 ; Wills' Gould feiture of his right he becomes a common treson Pleading (6th Ed.) p. 93.

passer and may be forcibly ejected on failure

Where the We take as illustrations pleas D and D; to depart after a request to do so. the latter was eliminated by demurrer, prob- is such as impliedly to invite to his premises

nature of the business of the owner of property ably on the ground that defendant's com- persons seeking to do business with him, he missary was a public place for the retail may nevertheless in most instances refuse to sale of goods, wares, and merchandise usual- allow a certain person to come on his premisly sold to the public in such commissaries, es, and if such person does thereafter enter hig and that plaintiff had the right to go there premises be is subject to ejection although his to buy (smoking tobacco, as he says in his conduct on the particular occasion is not replication), even though he had been pre

wrongful." viously warned not to do so or not to come In 5 C. J. p. 632, § 27, the text is that a upon the defendant's premises.

lawful owner or occupant of premises, or [3] The merchant, as proprietor of a com one claiming title and rightfully in possesmissary, or a storekeeper has the right to sion, may retain possession and use such withdraw the express or implied invitation force as may appear to be reasonably necesto trade from such persons as he may desire, sary to remove therefrom the trespassers as and thereafter if such persons come into his intruders, after allowing them a reasonable store or commissary he may eject them by time to depart after notice so to do. Jones the use of no more force than is reasonably v. Bynum, 189 Ala. 677, 66 South. 639; Ash.

100 SO.--16

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said

1

1

worth, Adm'r, v. A. G. S. R. R. Co., supra ; | ferred from Court of Appeals under Acts Bynum v. Jones, 177 Ala. 431, 59 South. 1911, p. 449, $ 6. Affirmed. 65; Hyde v. Cain, 159 Ala. 364, 47 South.

George Pegram, of Faunsdale, for appel. 1014; Thomason V. Gray, 82 Ala. 291, 3

lant. South. 38; New Morgan County, B. & L.

W. F. Herbert, of Demopolis, for appellee. Ass'n v. Plemmons, 210 Ala. 286, 98 South. 12; Motes v. Bates, 74 Ala. 374; Miller v. MILLER, J. This is a suit by G. W. Grif. McGuire, 202 Ala. 351, 80 South. 433; L. R. fin against W. E. Bailey for $400. The acA. 1918E, 1054, 1055, note; Cooley on Torts, tion is stated in the complaint under the com167, 168; 3 Cyc. 1045, 1046.

mon counts. The defendant pleaded general [4, 5] Every license of this kind, by which issue, statute of limitations of three years, one is permitted, without a consideration, and by special plea claims of plaintiff $724.to go upon or pass over the lands of another, 50 for the conversion of certain property by is revocable in its very nature, its depend- plaintiff, belonging to defendant, which prop ence being "upon the mere will of the person erty is described in the plea. The jury reby whom it is created or granted.” Motes v. turned a verdict in favor of the plaintiff ; Bates, 74 Ala. 374. The contrary must be judginent was rendered on it by the court, true, that one rightfully in the place at the and from that judgment defendant prosetime when he is ejected may recover for cutes this appeal. such an assault committed upon him. 5 C. [1] The defendant before entering on the J. p. 634, § 27.

trial appeared specially and moved to quash There was error in sustaining demurrer to the summons and process, and to strike the Plea E.

cause from the docket, because the summons It is unnecessary to consider the other issued and served on the defendant is dequestions presented. They may not arise on fective in failing to summon the defendant another trial.

to appear in any certain court: It fails to The judgment of the circuit court is re- state or show in what court the defendant versed, and the cause is remanded.

should appear; it fails to notify the defend. Reversed and remanded.

ant to appear in any special court.

The judgment entry of the court states : ANDERSON, C. J., and SOMERVILLE

“Defendant files motion to quash the sumand MILLER, JJ., concur.

mons, which said motion being considered by the court, it is the order and judgment of the court that the same be and is hereby overruled."

The judgment does not show any exception BAILEY V. GRIFFIN. (2 Div. 836.) reserved by the defendant to the ruling of

the court. Neither the motion nor the rul. (Supreme Court of Alabama. May 1, 1924.) ing of the court on it is mentioned in the

bill of exceptions. There is nothing in the 1: Appeal and error w 677-Overruling mo, record to indicate that any evidence was of

tion to quash summons and process presumed fered to sustain the averments of the motion. proper, where record discloses no evidence we find no introduction in evidence of the In support of motion.

Where there is no evidence in record to copy of the summons served on the defendsustain facts averred in motion to quash sum- ant, and find no proof offered as to its conmons and process because summons failed to tents to sustain the motion; the copy served summon defendant to appear in any certain on the defendant is not in the record. The court, trial court cannot be put in error for original summons, but not the copy, is in the overruling motion.

record. The motion and facts averred there.

There 2. Witnesses 255(2)-Permitting witness to in to sustain it are not evidence.

refresh memory from memorandum of ar. must be some proof offered to sustain the ticles sold to defendant held without error. motion. That burden rested on the movant,

Where itemized statement of goods sold the defendant. This court will presume the was made by witness who stated he sold each judgment of the court overruling the motion article in it to defendant, which were delivered, is free from error until the contrary appears that he knew it was correct, and had personal in the record in a proper way. We find in knowledge of items sold and mentioned in it, the record no evidence introduced by the dethere was no error in permitting him to re- fendant to sustain the facts a verred in the fresh memory therefrom.

grounds of his motion; so we must hold the Appeal from Circuit Court, Marengo Coun- Beadle v. Davidson, 75 Ala. 491; McCord v.

court did not err in overruling the motion. ty; John McKinley, Judge.

Bridges, 207 Ala. 376, 92 South. 447; Torrey Action on the common counts by C. W. v. Bishop, 104 Ala. 548, 16 South. 422. Griffin against W. E. Bailey Judgment for [2] The plaintiff filed with the complaint plaintiff, and defendant appeals. Trans- l an itemized statement of the account, veri

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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