Opinion
6 Div. 420.
October 29, 1929.
Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.
Action on common counts by B. P. Parsons against the Central Iron Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.
It appears that on November 24, 1926, defendant's market man came to the home of plaintiff, looked at the hog in question, and told plaintiff he would give him 14 cents per pound for the hog dressed and delivered at defendant's commissary the next morning. Plaintiff killed and dressed the hog that day and delivered it the following morning. The market man received the hog, split it, hung up a part, and left a part on the block. Presently the manager of the commissary examined the carcass, and declared the meat to be unsound for human consumption, and sent for the defendant's physician, who likewise declared it unsound. Thereupon the butchered hog was returned to plaintiff's truck. Plaintiff took it away and sold a part of it, gave away a part of it, and a part of it was consumed by himself and his family.
Defendant's evidence tended to show that the meat was spoiled. That for plaintiff tended to show that the meat was eaten by himself and others, and was sound and fit for human consumption.
H. A. D. K. Jones and Herbert L. Findley, all of Tuscaloosa, for appellant.
The evidence shows the transaction was to be a cash one, and the burden was on plaintiff to show nonpayment. Pollak v. Winter, 173 Ala. 550, 55 So. 828; Sullivan v. Hobbs, 19 Ala. App. 465, 98 So. 308. So long as a contract remains executory, the plaintiff must declare specially. Jonas v. King, 81 Ala. 285, 1. So. 591; Jebeles Colias v. Pettee Co., 16 Ala. App. 338, 77 So. 932; Dickson v. Ala. M. S. Co., 17 Ala. App. 195, 84 So. 416; Southern R. Co. v. Spragins, 131 Ala. 319, 30 So. 824, So long as the buyer can say without self-contradiction that the goods have not been taken in fulfillment of the contract of sale, he has not accepted them. Ex parte Bailey Gro. Co., 205 Ala. 79, 77 So. 373.
T. B. Ward and J. M. Ward, both of Tuscaloosa, for appellee.
An indebtedness once shown, the burden then shifts to defendant to show payment. Payment is an affirmative defense which must be specially pleaded. Pollak v. Winter, 173 Ala. 550, 55 So. 829; Sullivan v. Hobbs, 19 Ala. App. 465, 98 So. 307; Atwood v. Benson, 215 Ala. 72, 109 So. 361. When an agreement has been executed and fully performed and no duty remains but the payment of the amount or price in money by the party owing same, it is not necessary to declare specially or bring suit on the special contract. The creditor can recover on the common counts. Jonas v. King, supra; Stafford v. Sibley, 106 Ala. 189, 17 So. 324.
The appeal in this case is from a judgment in favor of plaintiff. The complaint was in assumpsit, and contained three counts: The first count being on account; the second on account stated; and the third count being for merchandise sold by plaintiff to defendant. In each count the amount claimed was $70.84, which amount the plaintiff claimed was due him by defendant for a hog sold to defendant by plaintiff. To each count of the complaint the defendant pleaded the general issue. No special pleas were filed.
While no special plea to that effect was filed, it is apparent from the record of the trial that the defendant refused to pay plaintiff the amount claimed, on the ground that the hog in question was not sound and not fit for human consumption. On this question the evidence was in conflict, and this appears to have been the actual litigated issue. This main issue, as to the soundness of the hog, was submitted to the jury, and the court charged the jury, in this connection, that "the defendant would not be required to pay the plaintiff for the hog, if the hog was not sound." The jury, as stated, found for the plaintiff on this issue, thus sustaining the plaintiff and his witnesses' contention that the hog sold the defendant by plaintiff was sound and fit for human consumption. There was no contention that the hog had been paid for.
Although the record shows that no plea, other than the general issue, was interposed to the complaint, yet it affirmatively appears by the bill of exceptions that both parties, without objection proceeded with the trial as if this issue had been regularly formulated by special plea. Where this is true, the appellate courts will review the action of the trial court just as if the record showed that an issue actually tried had been made up in due form. In such cases the missing plea is supplied by intendment. Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L.R.A. (N.S.) 653.
The assignment of errors and insistences of appellant are all of the same import. What has been here said, we think, is a sufficient answer in this connection.
No error appearing, the judgment appealed from is affirmed.
Affirmed.