Wikle v. Johnson Laboratories

McCLELLAN, C. J. — Defendant's assignments of grounds of demurrer to plaintiff’s replication to pleas 2 and 3 do not specify the objections to said replication, and they were properly overruled ivhether abstractly considered the replication was good or bad.—Code, § 8803; Tranum v. Drum, 112 Ala. 277; Browder v. Irby, 112 Ala. 379; Milligan v. Pollard, 112 Ala. 465, and other cases cited under said section of the Code; Central of Georgia R’y. Co. v. Joseph, 125 Ala. 313; Alabama State Land Co. v. Slaton, 120 Ala. 259; Moore.v. Heineke, 119 Ala. 627; Buchanan v. Larkin, 116 Ala. 431; Shahan v. A. G. S. R. R. Co., 115 Ala. 181; Cowan v. Motley, 125 Ala. 369. Defendant not having tested the sufficiency of the replication by special demurrer, his joining issue upon it after his general demurrer was overruled is to be taken as a voluntary joinder in issue; and thereby the replication was made material if not inherently so, and plaintiff was entitled to adduce evidence in support of it, and to recover upon it, so far as the special pleas were concerned, if the evidence was sufficient to establish its averments to the reasonable satisfaction of the court. All the evidence of Smith and others as to the advertisement, how and under what circumstances it was discontinued for a time and then renewed, etc., etc., was pertinent to and tended to prove the averments of the replication that defendant himself caused the stopping of the advertisement of which he complains in his special pleas, that the same was stopped on account of the defendant representing to the publisher of said advertisement that plaintiff was a fraud, and that plain .. [274] renewed the advertisement as soon as it had notice ic had been discontinued. And we are far from being able to say that the judge below plainly erred in his conclusion that the replication had been proved. There was no error in receiving evidence of the sale and shipment by plaintiff and receipt by defendant of the lot of goods valued at $34.50 forwarded on February 9, 1899. These goods were embraced in the written order signed by defendant. The order contained no stipulation that all the goods should be shipped at one and the same time, nor is there any room for an implication to that effect. Both lots were shipped within a reasonable time after the order was given. And the defendant is as much bound to pay for the one as the other. The court properly excluded the proposed evidence of the defendant as to what was the agreement or understanding between him and plaintiff with reference to the meaning of the words “to be advertised nntil sold” contained in the written contract of sale, the order executed by defendant. The writing itself, construed with reference to the nature of the transaction and in the light of surrounding circumstances is the sole evidence of the agreement, and parties cannot be allowed to alter or vary its terms by evidence of a contemporaneous parol agreement or understanding as to the meaning of its language.—Kyle v. Bellinger, 79 Ala. 516. The defendant having purchased the goods outright, it was obviously immaterial whether he had sold them or not. Suit being for the whole contract price of the goods, it is inconceivable how evidence that the defendant had paid no part of it could be objectionable. The evidence of the defendant as to the circumstances under which he executed the order for the goods is quite insufficient to make a case of fraud in the sale of the goods or any part of them. Affirmed.