Meyer Bros. Drug Co. v. Puckett

SHARPE, J. Tinder the complaint, which consists of common counts, plaintiff sought a recovery as for the price of merchandise consisting of medicine roots sold under agreement arrived at by correspondence between the plaintiff, who was in Alabama, and the defendant who was in St. Louis, Missouri. [336] Besides the general issue and pleas numbered 5 and 6 as to winch demurrers were sustained, and the plea 10 which was stricken out, several special pleas were filed in which the position was assumed that the goods plaintiff claims for were; shipped to and received by defendant as “Pink root” but were in fact “Twin-leaf root.” Pleas 2, 3 4 and 9 were met by the following replication on which issue was joined and which disclosed the version of the transaction relied on by the plaintiff: “The plaintiff desiring to sell certain roots and not knowing their commercial name or value, sent a sample thereof to the defendant, a learge dealer in various herbs, and roots, requesting defendant to' quote prices thereon. Defendant named the sample pink root, and made a price thereon, whereupon plaintiff made numerous shipments of said root to defendant, which was received by defendant' on its own inspection .as pink root, and paid for as such. The claim sued on is for the price of the last shipment ordered by defendant, which shipment was the identical article or root of the original sample, and the various other shipments which were pronounced pink root by defendant. Wherefore plaintiff says defendant is liable, because he delivered the article sold to and ordered by defendant, whether its true name is twin-leaf root, or pink root.” In the matters assigned as error, we find no cause for reversing the judgment. The counter claims set up by pleas 5 and 6 are not shown by the averments of the pleas, respectively, to have been well founded. To all that appears from the averments the freight payment therein claimed for may have been made voluntarily and not for or at the request of plaintiff. The other payments mentioned, in those pleas as having’been made to defendant are not. shown by the pleadings' to have been attended by any breach of contract or to have been induced by any misrepresentation or other conduct, operating a fraud on defendant, or otherwise giving rise to a liability against, the plaintiff. The demurrers to these pleas were properly sustained. Of whatever was meritorious in plea 10 defendant [337] bad benefit in other pleas, and lienee the striking ont of this plea was without injury. The issuefe involve no question of fraud, being joined alone on piea 1 which merely denied indebtedness, plea 8 which only presented a set off arising from freight charges averred to have been paid by plaintiff, and on the replication. Such being the issues, the question asked plaintiff on cross examination as to what he paid for the roots, called for immaterial matter. — Louisville Jeans Clothing Company v. Lischhoff, 109 Ala. 136; A. G. S. R. R. Co. v. Moore, 109 Ala. 393; Roden v. Brown, 103 Ala. 324; Central of Georgia Railway Co. v. Main, 135 Ala. 451. There was evidence tending to prove the averments of the replication — that the goods supplied in fulfillment of defendant’s order for pink root, corresponded with a sample that it had previously • inspected and named in its negotiations with the plaintiff as pink root, and that it purchased these goods in reliance upon its own conception of the kind and quality of the sample and not upon any representation or warranty of the defendant. From the conditions disclosed by this phase of the evidence the law does not raise any implied warranty on plaintiff’s part that the goods should be-suitable for defendant’s purposes. — Gatchett v. Warren, 72 Ala. 288. If, as might have been found from the evidence, the goods delivered were of the kind intended to he contracted for, the plaintiff was entitled to recover though they were different in name and quality from what is generally known as pink root. Hence charge 3 requested by defendant was rightly refused. The refusal of charges 2 and 4 was not improper. They were each calculated to mislead the jury to assume the subject matter of the contract was necessarily determinable by the name- applied to it in the correspondence between the parties, rather than the real understanding of the parties as evidenced by the dealings had between them including the correspondence. Judgment affirmed.