
    Dalton v. Bunn & Allison.
    
      Assumpsit.
    
    (Decided July 2, 1907.
    44 South. 625.)
    1. Pleading; Set-off and Recoupment: Sufficient. — A plea of re-coupment which fails to aver that the contract on the breach thereof sought to he recouped arose from or was related to the transaction on which plaintiff’s cause of action was based, is insufficient and subject to demurrer.
    2. Appeal; Waiver of Error. — Rulings on pleadings not assigned as error will not be considered on appeal.
    3. Pleading; Rejohler; Sufficiency. — Where the suit was for cord wood sold, delivered and retained by defendant and the pleas set up an express contract for the sale of 1.000 cords of a certain kind of wood at $1.50 per cord with which defendant was to fill a government contract ,of which plaintiffs had knowledge, and alleging a breach thereof, to which plaintiff replied that a large quantity of the wood had been delivered to and paid for by defendant without objection and sold at a large profit and that plaintiff continued to ship the wood under the contract until they had delivered 721 cords and were ready, willing to complete the contract, but failed to do so because of defendant’s failure and refusal to pay $400 due thereon and a notification to plaintiffs from defendants that he would not receive or pay for the balance of the wood, a rejoinder that after suit was brought plaintiffs took possession of and sold ISO cords of the wood for which payment was demanded, of the reasonable value of $270 which defendant sought to set off against plaintiff’s demand, was irrelevant and no answer to the replication, and was, therefore, probably stricken.
    
      4. Same; Issue and Proof.- — Where the evidence disclosed that plaintiffs were not informed of defendant's contract with the United States until after defendants made the contract for the purchase of the wood from the plaintiffs, such evidence will not support a plea setting up that plaintiffs contracted to furnish to defendant the wood in question with the knowledge of defendant’s contract to supply the wood to the United States government.
    Appeal from Madison Circuit Court.
    Heard before Hou. Paul Speaks.
    This was an action on the common counts begun by appellee against appellant. The 7th, 8th, 9th pleas set up a contract in writing between the parties for the purchase of wood calling for ten or twelve cars of four foot wood a week, ash, oak, hickory, mulberry, at $1.50 per cord, cars Crow Creek or "Stevenson which it is agreed shall be paid for every Saturday until the 20th of January. Defendant alleges that at the time of entering into the agreement, he had entered into a contract with the government of the United States to furnish to its officials at Huntsville four thousand cords of wood of the variety named in the above agreement with plaintiff at and for the sum of $8.54 a cord which wood under the contract with the government was to be inspected and accepted by government officials, and that these facts were known to plaintiff at the time of the execution of the above contract between plaintiffs and defendant. It is then alleged that the plaintiff failed to comply with their contract and instead of shipping the wood of the length and variety mentioned in the contract, plaintiff shipped a mixed variety including large quantities of soft wood, such as sweet gum, elm, hackberry and other varieties named in the plea; that this was inspected and rejected by the government, causing a loss of $1.14 per cord on the same to the defendant, which he offers to recoup and set off against this demand. The plea also alleges the failure to ship the number of cars per week as required; that he could not buy other wood to take its place, and lost his contract partially with the government, to his damage in the sum of $632.00. Plea 8 is practically the same as plea 7, with the additional allegation that a number of cars of wood particularly specified in the plea were rejected on account of the kind and quality of the wood and immediately thereafter, defendants notified plaintiff not to ship any more wood of that-kind and character, but to deliver the wood named in the contract, and thereupon plaintiff entered suit as shown by the complaint in this cause, and made no further delivery of wood to the defendant, thereby breaching the contract to the damage of defendant in the sum of $632, which is offered to be set off against the plaintiffs claim. The 9th plea is practically the same as the other pleas. The 10th plea alleges the contract between plaintiff and defendant for shipment by plaintiff to defendant of a thousand cords of wood by Jan. 20th, the delivery of 450 cords of the wood, its failure to comply with the contract specifications, knowledge on the part of plaintiffs, that the wood was bought to fill a Government contract, the failure of the 450 cords to come up to the specifications, and the failure of the plaintiff to ship the 550 cords balance due on the contract and defendants damages growing out of such failure. Eleventh plea is as follows: That on the 23rd of November, 1898, defendant entered into the contract set out in plea 7 with plaintiffs. Defendants allege that under tbe terms of said agreement, be received from plaintiff and paid for 450 cords of 'wood at tbe price of $1.50 per cord, aggregating $675.00. It is then alleged that at tbe time of entering into tbe above agreement and prior thereto, be bad entered into a contract with tbe government of tbe United States to fnrnisb tbem certain specifications; that plaintiffs knew of tbis contract and knew that tbe wood purchased by tbem by defendant was to go to tbe fulfilling of tbe contract with tbe Government. It is then alleged that plaintiff refused and failed to comply with the terms of tbe contract, in that- they did not deliver ten or twelve cars per week as agreed upon, and further failed to furnish tbe wood according to tbe specifications of tbe contract which are set out in tbe plea, but on tbe contrary furnished wood of a soft variety, naming tbe kind and by reason of tbe mixture of said wood and by reason of loading tbe cars with tbe soft wood, tbe same was rejected by tbe Government officials. And that at least two-thirds of tbe wood shipped Avas rejected and that tbe cars were so mixed with soft wood as to be of no value to defendant, in filling bis contract with tbe Government. That under bis agreement Avith tbe Government, be bad a clear profit of $1.14 per cord in the wood. It is then alleged that the plaintiffs failed to furnish tbe other 550 cords called for by tbe contract; that tbe defendant was unable to purchase tbe wood elseAvhere to fill said contract, and by reason of the same lost the profit of $1.14 per cord on said 550 cords, to bis damage in tbe sum of $632. Demurrers Avere sustained to all these pleas except to plea 11. The plaintiff filed replications 3 and 4 setting up tbe contract with defendant, and alleged that tbe contract was in Avords and figures as follows: We agree to furnish A. L. Dalton ten or twelve cars of four foot wood per week, ash, oak, hickory, mulberry, etc., at $1.50 per cord F. O. B. cars at Crow Creek or Stexenson, and Dalton agrees to pay for same every Saturday until the 20th of January, by which time we agree to furnish 1,000 cords. It is then alleged that defendant knew at the time he entered inio the contract that plaintiff was selling a mixed variety of wot d, consisting of oak, ash, hickory, mulberry, hack-berry, sycamore, elm, sweet gum and iron wood. It is then alleged that plaintiffs entered immediately in the porl'oi manee of said contract by a delivery to the defendant at the place specified large quantities of wood in said varieties above set out, in car load lots, and in installments from 67 to 126 cords per week. It is then averred that defendant received said shipments, accepted them and paid for them, Avithout objection and sold them at a large profit, and that plaintiffs continued to ship said wood under the contract until they had delivered 721 cords of Avood, and that they were ready and willing at all times to complete the contract; and that their failure to do so, Avas by fault of the defendant for failing and refusing to pay plaintiff the sum of $460.00 due under the contract and notified plaintiffs that he would not receive or pay for the balance of said Avood. The fourth replication Avas in all respects similar to the third. The rejoinders Avere first, a denial of the replication ; 2nd, that after this suit was brought, the plaintiffs took into their possession and sold 180 cords of said wood upon Avhich payment was demanded by the same, and that the reasonable price of wood at that time was $1.50 a cord aggregating in value the sum of $270.00, which defendant sets off against the demand of the plaintiffs. The facts appear in the opinion of the court. There was judgment for plaintiff in the sum of $644.50 and defendant appeals.
    
      William B. Banichbad_, for appellant.
    Tbe court improperly sustained demurrers to defendant’s pleas of recoupment. — Grisham v. Bodman, 111 Ala. 200; Marbury v. Leach, 58 Ala. 339; IHwing v. Shaw, 83 Ala. 333. Tbe damages set up therein are not alleged as speculative or conjectural. — Penn v. Smith, 104 Ala. 449; Bell v. Reynolds, 78 Ala.- 511. Tbe court erred in overruling defendant’s demurrers to tbe 3rd and 4tb replication. — Wright v. Forgy, 126 Ala. 389; Highland A.- '<& B. R. R. Go. v. South, 112 Ala. 642; Christian v. Niagara Go., 101 Ala. 634; Barbour v. Washington, 60 Ala. 433. Tbe court erred in striking defendant’s rejoinder. It should have put plaintiff to demurrer.— Wright v. Forgy, supra; Hightower v. Ogletree, 114 Ala. 103; Lee v. DeBardelabed, 102 Ala. 628; Powell v. Crawford, 110 Ala. 300; Lindsey v. Morris, 100 Ala. 550. Tbe court erred in excluding tbe evidence of defendant Dalton in regard to bis contract with the government.- — - Bank v. Bradley, 108 Ala. 207. Plaintiffs did not prove their replication and this failure entitled defendant to judgment. — 19 Ala. 210; 60 Ala. 433.
    Cooper & Foster, for appellee.
    The court properly sustained demurrers to tbe 7th and 8th plea. — Watson v. Kirby, 112 Ala. 426; Strauss v. Mertief, 64 Ala. 299; 24 A. & E. Ency. of Law, 1156. Tbe demurrers to tbe 9th plea were properly sustained. — Lawton c. Ricketts, 104 Ala. 430; Castleton v. Jeffries, 4 Ency. P. & P., pp. 628-632; 80 Ala. 30; 82 Ala. 85. Tbe 7th ground of demurrer to tbe 9th plea was properly sustained. — National Fert. Co. v. Holland, 107 Ala. 412; H. A. & B. R. R. o. v. Miller, 120 Ala. 535 Tbe 14th ground of demurrer was properly sustained to tbe 10th plea. — Lawton v. Richertts, supra; Penn v. Smith, 104 Ala. 449; N. B. S. Ry. Co. v. Liddicoat, 99 Ala. 545; 96 Ala. 454; 110 Ala. 294; 116 Ala. 138; 124 Ala. 639. In order to ren-tier a party liable in damages for the loss of prospective profits something more is necessary than the knowledge of tlie mere fact of the existence of a contract of re-sale. • — 75 Ala. 175; 78 Ala. 511. There ivas a variance between the allegation and the proof as to the provisions of the contract between plaintiff and defendant.
   DOWDELL, J.

Since the remandment of this canse on the former appeal — Dalton v. Bunn & Allison, 137 Ala. 175, the defendant has filed additional special pleas as shown by the record, numbered 7, 8, 9, 10 and 11. These pleas profess on their face and are so intended to he, pleas of recoupment. Demurrers were interposed to each of said pleas, and were by the court sustained as to all of them except the 11th plea. This action of the court constitutes the basis of assignments of error numbered two, three, four and five. The first assignment of error on the record relates to the ruling of the court on demurrers to pleas 2, 3, 4 and 5. This assignment is not, however, insisted on in argument. Moreover, these pleas were considered on former appeal and were then condemned.

Special pleas 7, 8, 9 and 10, were each faulty .and subject to the demurrer. Neither of these pleas aver that the contract and the breach of which is set up by way of recoupment, arose from," or in any way related to the transaction on which the plaintiff’s cause of action is based.

As was said in Washington v. Timberlake, 74 Ala 259: “Recoupment applies when the abatement claimed springs out of the very contract or transaction on which the recovery is sought. It is entirely unlike set-off, which is in the nature of a cross-action, and may rest on independent legal demand, if that demand be of a class not sounding in damages merely.” See also Grisham v. Bodman, 111 Ala. 194. The court committed no error in sustaining the demurrers to the several special pleas.

The ruling of the court on the demurrers to replications three and four is not assigned as error, and hence, cannot be considered. Rejoinder numbered two was properly stricken on motion. It purported to answer replications three and four. The matter set up in this rejoinder was irrelevant and in no sense an answer to the replication. — Section 3286, Code of 1896.

The only other assignment of error insisted on, except the one that the court erred in rendering judgment for the plaintiff, is the action of the court in excluding the testimony of Dalton relative to his contract with the U. S. Government. This evidence, under the issues, was immaterial, and the court committed no reversible error in its exclusion.

The defendant’s plea averred that the plaintiffs entered into their contract with the defendant with knowledge at the time of the defendant’s contract with the U. S., and the theory of defendant’s case on this line was that the contract with the plaintiffs was entered into and made with reference to defendant’s contract Avith the U. S. The evidence excluded tended only to shoAV that plaintiffs were informed of the defendant’s contract Avith the U. S., subsequent to the making of the contract betAveen plaintiffs and defendant.

We find no reversible error in the record and the judgment is affirmed.

Affirmed.

Tyson, C. J., and Anderson and McOleulan, JJ., concurring.  