E. I. Du Pont De Nemours Powder Co. v. Parsons

WALKER, P. J. — To this action on an account the defendant pleaded the general issue and a special plea which averred that the plaintiff did, on a day named, undertake to carry or haul for a reward 48 cases of carbonite for defendant from Bessemer to Sumter, and re [250] ceived and took charge of said carbonite for said purpose, and negligently failed to deliver seven cases thereof of a stated value, the claim for the amount whereof the defendant offered to set off or recoup against the demand of the plaintiff. Plainly the contract averred in the special plea is one of carriage whereby the plaintiff undertook to carry and deliver the goods mentioned for a reward. No evidence in the case tended to prove that such a contract was entered into. While the evidence offered by the respective parties did not correspond in all details, it was without conflict to the effect that the plaintiffs undertaking was to furnish for the defendant’s use wagons, teams, and drivers at a stated price per day; that it was left to the defendant to determine the hauling to be done, it being agreed that the price for a day’s hire would be paid if a load was sent to certain named places at which the defendant had occasion to make deliveries of goods, and that half of that price was to be paid if the load was sent to other named places not so far away. This evidence had no tendency to prove that the plaintiff obligated himself as alleged in the special plea. The plea avers a contract to carry specified articles to a designated place. The evidence shows a contract of hire, under which the defendant had the right to determine what, if any, use it would make of the wagon and team and of the services of the driver furnished. There was such a variance between the allegation and the proof that the plaintiff would have been entitled to the general charge with hypothesis as to the defense set up by the special plea. This being true, the appellant could not have been prejudiced by the court’s refusal to give written charges 2 and 3 (Emmett et al. v. Hooper, 157 Ala. 586, 47 South. 1006; Christian v. Denmark, 156 Ala. 390, 47 South. 82) ; and, evidence having been offered which tended to [251] support the claim sued on, charge 1 was properly refused. Affirmed.