Robinson v. Steverson

[598] SOMERVILLE, J. There are expressions in some of our earlier cases—see, especially, Sledge y. Swift, 53 Ala. 112—to the effect that a plea of set-off need not observe the same precision of allegation which would be required in stating the same cause of action in an original complaint. The effect of our recent decisions, however, is to place such a plea on the same footing as an original complaint, and to subject it to same tests as to the sufficiency of its allegations. J. C. Lysle Mill Co. v. North Ala. Gro. Co., 201 Ala. 222, 77 South. 748. We see no reason for changing this rule. Applying this test to the plea of set-off here exhibited, we think it is defective in not specifying even in general terms the nature of the defects attributed to the carload of lumber received from the plaintiff. To allege merely that plaintiff “did not furnish such lumber as was ordered by defendant, and as plaintiff agreed to furnish,” is no rn'ore than to say that plaintiff breached his contract. It does not meet the requirement stated in Rosengrant v. Finklea, 208 Ala. 401, 403, 94 South. 543, 545, “that it be sufficient to give the naturé or character of the breach so as to inform the defendant what he is expected to defend.” We think the plea in question should have stated that the lumber furnished to defendant was not such as vras ordered in respect to kind, quality, or sizes, one or all, as the case might be. Such specifications would be very general indeed, but they would inform the plaintiff of the matters to be put in issue. Certainly they would not amount to statements of the evidence, as disapproved in Warren v. Cash, 143 Ala. 158, 39 South. 124. The cases reviewed and relied on by petitioner are by no means analogous to the case under consideration. It is insisted that, even if the plea was defective and the demurrer erroneously overruled, the record does not show that prejudice resulted to plaintiff. It does not appear that that question was presented to the Court of Appeals, and, in any event, we would not review their conclusion in that regard. As to the action of the trial court in denying plaintiff’s motion to strike from the plea of set-offs certain items of damage averred but not properly recoverable, we have uniformly held that it is not reversible error, since the movant may by objection exclude the evidence of such matters, or by requested instructions nullify its effect. Goldsmith v. Picard, 27 Ala. 142; Marx v. Miller, 134 Ala. 347, 352, 32 South. 765; Vandiver v. Waller, 143 Ala. 411, 39 South. 136, and many other cases. In denying the writ of certiorari, we do not wish to be understood as sanctioning the statement in the opinion of the Court of Appeals that the denial of plaintiff’s motion to strike was reversible error. If that were the only ground for the reversal of the trial court’s judgment, the writ would be awarded. Writ denied. All the Justices concur.