Thornton v. Dwight Manufacturing Co. , 120 Ala. 653 ( 1898 )

DOWDELL, J.

The complaint contains three counts ; the first being in trespass, the second in trover, and the third case. A demurrer was sustained to the third count, but after being amended by the plaintiff, no further objection was made to its sufficiency as amended. The only plea filed to the complaint, was the plea of not guilty. On this plea issue was joined, and a trial was had by the court, trial by jury having been waived. The plea of “not guilty” in actions of tort is, under the statute, (Section 3295 of the Code of 1896), made the general issue, and puts in issue all the material allegations of the complaint. No matter in avoidance of the allegations of the complaint, or in excuse or justification of the wrongful act imputed to the defendant is within the scope of the issue thus made. All such matters the statute requires to be specially pleaded.— Petty v. Dill, 53 Ala. 645; Lunsford v. Walker, 93 Ala. 38; L. & N. R. R. Co. v. Trammell, Ib. 350; Behrman v. Newton, 103 Ala. 525; American Oak Extract Co. v. Ryan, 112 Ala. 337; Scarborough v. Blackman, 108 Ala. 656.

The only evidence offered by the defendant was the record and proceedings in a suit instituted by the plaintiff, before the commencement of the present suit, against one C. M. Davis, and in which the defendant in this action was summoned as a garnishee. The object and purpose of this evidence was to show that the plaintiff in suing Davis on his contract made with plaintiff for the purchase of the lumber in question, and garnishing the defendant. The Dwight Manufacturing Co., as the debtor of Davis in its purchase of the lumber from Davis, had elected to ratify the sale by David to the defendant company and thereby waived the tort. This, defense was in effect an admission that the wrong imputed by the complaint had been committed by the defendant, but that the plaintiff by her subsequent conduct had waived the tort. The evidence was clearly irrelevant to the issue made by pleading, and the court erred in admitting it against the objection of defendant. This was matter which was required to be specially pleaded. See American Oak Extract Co. v. Ryan, 112 Ala. 337, and other authorities cited.

The only evidence offered by plaintiff to show the quantity of lumber received by the defendant from said Davis, is a -written statement or account furnished by the defendant upon plaintiff’s demand for the books of defendant showing amount of lumber received by it from Davis in December, 1895. This statement contains several different columns of figures, besides the column of dates, without anything to indicate their meaning or significance. Nor is there anything in the rest of the testimony in the case, affording any aid in this direction. It was, therefore, impossible to determine with any degree of certainty the amount of lumber received by defendant from Davis, and without this the court would be unable to ascertain the amount of damages, beyond mere nominal damages, the plaintiff might be entitled to recover. But apart from this, there was sufficient evidence on the part of the plaintiff to authorize a judgment for nominal damages.

g [For the error pointed out, the judgment of the city court is reversed and cause remanded.