Copeland v. Union Nursery Co.

McCLELLAN, J. The action was instituted by appellee against appellant. There was judgment for the plaintiff. The only errors assigned and insisted upon in brief for appellant are these: (a) The overruling of demurrer to the fifth count of the complaint; (b) sustaining demurrer to plea 3; (c) sustaining demurrer to plea 8; (d) and the allowance in evidence, over defendant’s objection, of the written order for goods out of which, it appears, the plaintiff’s asserted rights arose. The first assignment cannot be considered, because the record does not disclose action by the court on demurrer to the fifth count. The court appears to have alone ruled, in respect of the complaint, upon the demurrer to count 4. The recital in a minute entry of the court’s opinion does not constitute a judgment by the court in the premises.—Jasper Merc. Co. v. O’Rear, 112 Ala. 247, 20 South. 583; Bell v. Otts, 101 Ala. 186, 13 South 43, 46 Am. St. Rep. 117, among others. The complaint contained five counts. The first three [151] counts were the common counts: Account; account stated; and goods sold. The fourth count was stricken in response to demurrer. The fifth count was for breach of a Avritten contract, set out, in material parts, in the count. Plea 3, Avhich the report of the appeal Avill set forth, was not subject to any of the grounds of demurrer interposed thereto'. All of the eleven grounds, except the third, sixth, and seventh, relate to the second plea—not to the third plea. The criticism these grounds make of the plea (3) is that it is not shown that defendant suffered any damage by reason of the failure of, or delay in, delivery of the goods within the time specified in the order, or that the goods were not delivered. The writing set forth in the fifth count shows an obligation assumed by the plaintiff to “forward”—meaning to send or ship—the trees to defendant on “November 20, 1911, or within 20 days thereafter,” at Cordova, Ala. There is no limitation or stipulation as to time for delivery, though, of course, as to that, the contract being silent, the law would' and did require delivery Avithin a reason time after the 20 days mentioned had expired.—McFadden v. Henderson, 128 Ala. 221, 29 South. 640. If the contract involved Avas, in fact, that averred in the plea (3), certainly the stipulation as to time set forth in the plea Avas a material condition in the contract, and the plaintiff could not recover, unless he had complied with the stipulation as to time of delivery averred in the plea (3). Whether defendant suffered damage in consequence of failure of, or delay in, delivery of the goods was, manifestly a matter entirely aside from the purpose and effect of the plea’s allegation, auk.: The failure of the plaintiff (seller) to make delivery of the goods within the time specified, as the plea averred. A plaintiff seller cannot maintain his [152] action against the buyér if he (seller) was himself in default in the performance of his contract, unless his. default was waived by the buyer. Of course if, as the plea (3) asserts, the stipulation with reference to time of delivery was not complied with by plaintiff, a bar to recovery was, unless waived by defendant, established, and the plea would have gained no force by the interpolation of an- averment negativing delivery. The demurrer to plea 3 might well have been overruled. But lánce the general issue was pleaded, and the writing itself was properly admitted in evidence the erroneous ruling on the demurrer was harmless. The substance of the plea (3) was admissible under the general issue tc defeat a recovery under any of the counts submitted to the jury. Plea 8, which will be set out in the report of the appeal, was not subject to any of the grounds of demurrer interposed. It possessed the defect to be stated; but no ground of the demurrer pointed thereto. It omitted to aver that the property alleged to have been converted was the property of the defendant at the time the conversion was effected. The ruling of the court sustaining a demurrer cannot be justified on account of a defect not designated by the demurrer. A plea of set-off is not defective because it fails to assert, by way of cross-demand, a right to' a sum sufficient to cancel, rather than toll, the recovery sought by the plaintiff.—Tutwiler v. McCarty, 121 Ala. 356, 25 South. 828. Under the statute (Code, § 5858) mutual debts or demands, liquidated or unliquidated, not sounding in damages merely, “subsisting between the parties at the commencement of the suit,” “whether arising ex contractu or ex delicto,” may be the subject of the pleaded right of set-off. And Code, § 5859, thus defines the character of demand that does not sound in damages merely: [153] “* * * One which, when the facts upon which it is based are established, the law is capable of measuring accurately by a pecuniary standard.” In trover the law affords a pecuniary standard whereby the damage is to be ascertained and measured. Ordinarily it is the value of the property at the time of the conversion or at any time between that time and the trial.—4 Mayf. Dig. p. 998. Otherwise than as has been stated, the plea (8) was without fault.—Civil Code, pp. 1199, 1202, forms 24 and 27. For the error committed in sustaining the demurrer, to plea 8, the judgment is reversed, and the cause is remanded. Beversed and remanded. Anderson, C. J., and Sayre and de Graffenried, JJ., concur.