Bullard Car Door Equipment Co. v. Oak Leaf Coal Co.

PELHAM, J. — Plea No. 4 is so drafted by the pleader that it can be contended with some plausibility that, [644] taking its averments most strongly against the pleader, it fails to aver that the account set up as a set-off .to the plaintiff’s claim was a subsisting indebtedness between the parties in that it fails to directly aver in so many words that the account was due from the plaintiff to the defendant, and it might, for anything alleged in the plea, be an account due from the plaintiff to some third party. — Jones v. Blair, 57 Ala. 457. The allegations of the fifth plea, however, are not subject to this ground of demurrer. It avers, by a fair construction of the allegations of the plea, an existing indebtedness subsisting between the parties for goods, wares, and merchandise sold by the defendant to the plaintiff, which it offers to set off against the demand of the plaintiff. The fifth plea was not deficient in ary matter pointed out by the demurrers interposed to it, and the court was in error in sustaining the demurrers. to this plea. The pleadings show that the defendant under the averments of his plea (No. 5) was setting up an indebtedness due from the plaintiff to him; that the debts were mutual; and that the demands were subsisting causes of action, such as would give the plaintiff and defendant simultaneous causes of action, one against the other, at the time suit was brought. — Code, p. 1202, form 37; Lawton v. Ricketts, 104 Ala. 430, 16 South. 59; St. Louis & Tenn. River Packet Co. v. McPeters, 124 Ala. 451, 27 South. 518; Light v. Henderson, 158 Ala. 200, 48 South. 588. Reversed and remanded.