Friddle v. Braun

ANDERSON, J. In count 6, the plaintiff joined separate and independent actions, and this is forbidden, notwithstanding he might have set out each of them in the same complaint by separate and distinct counts. The trial court did not err in sustaining the defendant’s demurrers to this count.—H. A. R. R. v. Dusenberry, 94 Ala. 413, 10 South. 274; L. & N. R. R. Co. v. Cofer, 110 Ala. 491, 18 South. 110. Count 2, sets up a breach of contract, not only as to additions and calculations relating to the inventory, but charges that the inventory was incorrect upon many other grounds, yet the special plea thereto merely sets up a new agreement covering errors in calculation and addition as to the items appearing on said inventory. It does not include items improperly put on the inventory or improperly valued. Nor does it set up a waiver, on the part of the plaintiff, as to all breaches arising upon the contract sued upon, by the execution of the new contract set up in said special plea, or a merger. This plea, as found on page 24 of the record, was filed as to count 5 also; and, while it may be questionable as to whether or not the demurrer was specific enough to it as an answer to count 5, it was defective as to said count 5 as well as 2, and the demurrer to it, as addressed to count 2, should have been sustained. Count 7 is manifestly bad. It neither avers a false or fraudulent misrepresentation of the condition of the [563] paper cutter, nor that defendant falsely or fraudulently concealed its defective condition. From aught that appears from the count, the condition of the paper cutter was known to the plaintiff when he made the trade. Counts 3 and i are the common counts for money had and received, and the special plea thereto denies owing the plaintiff anything, except a certain sum due upon a contract therein set out, and tenders the amount admitted to be due. The trial court did not err in overruling the demurrer to this plea. We find no reversible error in the rulings upon the evidence. For the error pointed out, the judgment of the city court must be reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Mayfield and de Graffenried, J.J., concur.