Tutwiler v. McCarty & Co. , 121 Ala. 356 ( 1898 )

McCLELLAN, C. J.

— The 4th plea filed by the defendants is in the form prescribed by the Code for a plea of set-off. If proved, it is, in a sense, a defense to the action to the extent of the amount set up in it, though strictly speaking set-off is not a defense at all, but in the nature of a cross-action: It does not go in denial of the cause of action set up in the complaint or in bar of recovery upon that cause of action, but asserts only tha't the defendant has a just claim against ' the .■ plaintiff which should be accommodated in the judgment'tó be rendered, and, m effect, paid out of plaintiff’s recovery. But while all this is true, it was competent for the legislature to denominate such cross-action a defense, and to prescribe a form for the plea bringing it forward in the Code in which it is called “a defense to the action,” though it may not in a given case go to the whole action, or rather to the whole amount claimed. — Code (1886), p. 797, Form 37; Lang v. Water’s Admr., 47 Ala. 624. The trial' court erred in sustaining the demurrer to this plea.

We deem it unnecessary to pass upon the sufficiency of pleas 1, 2, 3 and 6 which were also held bad on demurrer. The defendants had the full benefit of all the matters averred in these pleas- on the trial, and they could not have been injured by the action of the court on the demurrers to them.

The same may be said of the pleas numbered 7, 11, 12 and 13 which the court refused to allow to be filed: The defendants could not possibly have been injured by that action of the court; every issue tendered by the pleas was already before the court.

Pleas 8 and 14 were pleas of set-off. They were open to the same objection which the city court held good against plea 4. Holding plea 4 to be bad the court acted consistently in declining to allow these pleas to be filed, for it is never incumbent on a court to allow the filing of a plea which is demurrable. Here we have held the 4th plea to be good; and hence the court’s action in respect of pleas 8 and 14 cannot be rested on the ground that those pleas were bad; but the point is saved for appellants in our ruling on the 4th plea, and we need not pass on the propriety of the court’s action in refusing to allow the 8th and 14th pleas to be filed.

We beg leave to remark that it seems to us that there was no semblance of occasion in this case for more than three pleas, viz: the general issue (Code, § .3295),.set-off and recoupment.

Two witnesses testified that Ely Tutwiler was superintendent of one of the defendants, the Tutwiler ,Coal, Coke & Iron Co. and one testified without objection that Ely said he was attending to the business of the other defendant E. M. Tutwiler. There was no evidence to the contrary. One who is attending to the mining business oí another may well be said to be that other’s superintendent. The court on this state of the case committed no •error in charging the jury to find that Ely Tutwiler was the superintendent of the defendants if they believed the evidence. Charges 11 and 13 given at plaintiff’s instance confessedly state sound propositions of law and in view of the evidence as to Ely’s being the superintendent of the defendants they are not abstract.

• We concur in the construction put on the written contract by the trial court. It is so obviously correct upon a view of the whole writing that we deem it unnecessary to enter upon a discussion of it.

Charges 4, 6 and 7 refused to the defendants are bad in that they take no account of the evidence going to show such breach of the contract by the defendants as would authorize the plaintiffs to refuse to further carry it out; if not also upon other grounds.

If it were supposed that the complaint does not show that the plaintiffs were the owners of the contract at the time suit was instituted, the defect should have been reached by demurrer.

Reversed and remanded,

Sharpe, J. dissenting.