
    American Sales Book Co. v. Pope & Co.
    
      Assuonpsit.
    
    (Decided January 14, 1913.
    61 South. 45.)
    .■1."Appeal and Error; Record; Demurrers; Judgment Entry.— Where demurrers were filed to eight pleas, a judgment entry showing that the court sustained demurrers to five of the pleas, by number, “and overruled as to all- other pleas” was not sufficient to support assignments of error based on the overruling of such demurrer.
    2. Same; Review; Theory Below. — Where an action of assumpsit is tried to its conclusion below on the theory of an issue made by the plaintiff's replication, the appellate court will consider the case on the same theory.
    3. Contract; Sales; Acceptance; Waiver. — Where defendants denied liability under the contract because not notified, as requiring by its terms, that plaintiff had accepted it, and the case was tried to its conclusion on the theory of the issue made by replication alleging that the defendants waived such notice by receiving goods under the contract, plaintiff was entitled to an instruction that if defendants received the goods sold them by the plaintiff, they waived notice of the acceptance of their contract by plaintiff.
    4. Sales; Contract; Right to Rescind. — Where a‘buyer retains part of the goods bought under the contract, he cannot avail himself of any right to rescind for fraud, since he cannot be heard to assail the contracts and retain its fruits.
    Appeal from Coosa Circuit Court.
    Heard before Hon. S. L. Brbweír.
    Assumpsit by the American Sales Book Company against S. H. Pope and R. O. Richards, individually, and as partners. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    The first count claims for balance due on goods, Avares, and merchandise sold. The second count claims for balance due for certain goods sold, naming them specifically. The third count claims on a special contract Avhich is made an exhibit to the complaint, which is in the nature of an order to the plaintiff from the defendant to ship certain goods mentioned therein, agreeing to pay $100, $5 upon delivery, and the balance in six equal monthly payments or 5 per cent, cash ten days. It is agreed that, should there be a failure to pay any drafts or execute notes for deferred payment, the full amount should at once become due and payable, anything in the notes to the contrary notwithstanding, and, in default of any payment, that the goods might he removed, and the amount paid thereon be taken and deemed to be payments for the use of the goods therein specified. The pleas 1 and 2 were the general issue. (3)' “No consideration, in that the goods were entirely worthless, and of no value, and that the said goods constitute the sole and only consideration for the contract.” (4) “Failure to mail an acceptance of said contract as provided in said contract, by the plaintiff.” (5) “That the sole consideration for the demands sued on is the purchase price of the goods mentioned in the contract, and that under the contract the title to said goods remained in the plaintiff until fully paid for, and the defendant says that it delivered back to the plaintiff all the goods therein mentioned and that plaintiff accepted the same.” (6) Same as 5. (7) “The sole consideration for the demand sued on was the articles mentioned in the contract, and that said contract was not approved in writing by the plaintiff, and was not accepted and acknowledged and mailed from the factory as provided by the terms of the contract.” (8) “Alleges representations made by the agent of the plaintiff that the goods were useful and valuable instruments to be used in defendant’s mercantile business, and that the contract was made on the faith of said representation, and that the goods Avere not suitable for the purpose for which they were purchased, said purpose being known to the plaintiff at the time said contract Avas made, and that said representations were false, etc., of which fact defendant was not aware at the time of signing the contract.” (9) Fraud based on the same facts as set out in plea 8.
    The replications are: (1) “That defendant received the goods shipped under the contract without having-received an acknowledgment and acceptance of the same in writing, and thereby waived plaintiff’s written acceptance.” (4) “Answering pleas 8 and 9: (1) That defendant had knowledge of the facts at the time of the execution of the contract, as shown by the contract, that plaintiff’s salesman had no authority to make any agreement, verbal or otherwise, except as written in said contract. (2) That plaintiff’s salesman had no authority to malee any of the alleged false or fraudulent representations to the defendant, to secure their contract for the goods purchased by defendant, and that plaintiff was not bound by same when such was made.”
    Charge 4 was refused to the plaintiff, and is as follows : “I charge you that, if you believe to your reasonable satisfaction from the testimony that the defendants received the goods sold them by plaintiff, then defendants waived notice of acceptance of their contract by plaintiff in writing as set out in the contract.”
    John A. Darden, for appellant.
    Plea 4 was not good, nor was plea 7. — 145 Ala. 331; Allcjood v. The Bank, 115 Ala. 418; Samples v. Guy or, 120 Ala. 61; 113 Ala. 467. There can be no valid rescission of the contract where the fruits of such contract is retained, and hence, demurrer to plea 5 should have been sustained. — Authorities supra.. The demurrers to amended plea 8 should have been sustained. — Sword Med. Go. v. Case, 145 Ala. 331. No presumption can be indulged that there was other evidence in the case, since the bill of exceptions contains the averment that this was substantially all the testimony. — Thomas Bros. v. Williams, 54 Ala. 494.
    Biddle, Ellis, Biddle & Prueit, for appellee.
    Attention is called to the fact that the judgments not sufficient to support an assignment of error based on a sustaining of demurrers to the pleas. A waiver or an estoppel must be specially pleaded. — Blair v. Williams, 159 Ala. 655. Defendant proved its pleas, or at least some of them, and was therefore entitled to the affirmative charge, and hence, any error was without injury to the appellant.
   PELHAM, J.

The appellee, defendant below, filed pleas numbered from 1 to 9, inclusive, to the plaintiff’s complaint, claiming on account and special contract in its different courts. The plaintiff filed demurrers to pleas 2, 3, 4, 5, 6, 7, 8, and 9, and the judgment entry set out in the record shows that the court sustained demurrers to pleas 2, 5, 6, 8, and 9, “and overruled as to all other pleas.” The judgment entry further shows that the defendant by leave of the court amended pleas 5, 6, 8, and 9 by filing separate paper writing setting out the amendments, and that the plaintiff refiled all demurrers theretofore filed to the original pleas to these pleas as amended, and the demurrers so filed to amended pleas 5, 6, 8, and 9, were overruled, and a judgment of the court is shown to that effect. It will be observed, however, that under the rulings of the Supreme Court the judgment entry does not show a sufficient judgment on the demurrers to pleas 3, 4, and 7 to support the assignments of error based on such rulings. — Hereford v. Combs, 126 Ala. 369, 28 South. 582; Bessemer L. & I. Co. v. Dubose, 125 Ala. 442, 28 South. 380; Speer v. Crowder, 32 South. 658; Dantzler v. Mill Co., 128 Ala. 410, 30 South. 674; Reese v. Fuller, 132 Ala. 282, 31 South. 601.

It is also shown by the judgment entry with respect to the ruling in this particular that after the court sustained the demurrers to pleas 2, 5, 6, 8, and 9, the defendant filed amendments to these pleas, and the plaintiff refiled demurrers to them but did not refile demurrers to pleas 3, 4, and 7. The judgment on the plaintiff’s demurrers filed to amended pleas 5, 6, 8 and 9 is a joint judgment, and no separate ruling seems to have been invoked or made, or judgment entered, on the demurrers to these pleas separately, so far as appears, or is shown by the judgment entry. While it is true, as contended by the appellee, that a reversal of the case would not he authorized on the joint judgment on the demurrers to these pleas because all of them are not subject to the demurrers interposed, it is also true that the case was tried to its 'conclusion on the theory of the issue made by the plaintiff’s replication as set out in the record, and this court will consider the case on the same theory. — Planters’ & Merchants’ Independent Packet Co. v. Webb, 156 Ala. 551, 46 South. 977, 16 Ann. Cas. 529; Gainer v. So. Ry. Co., 152 Ala. 186, 44 South. 652; Hardeman v. Williams, 150 Ala. 415, 43 South. 726, 10 L. R. A. (N. S.) 653; R. & D. R. Co. v. Farmer, 97 Ala. 141, 12 South. 86; Avery & Co. v. Turner, 3 Ala. App. 627, 57 South. 255.

Treating the case on this theory, the court was in error in refusing charge No. 4 requested by the plaintiff. It was also error to overrule the plaintiff’s motion for a new trial on the ground that the verdict for defendants was contrary to the evidence. The evidence without conflict showed that, while the defendants shipped back to the plaintiffs the recapitulator they retained supplies furnished with it under the contract to tbe value of about $20 and made no payment of any amount aside from tbe $5 paid to tbe agent when entering into tbé contract. One cannot exercise bis right of rescission because of misrepresentation and fraud practiced on bim, and'still retain part of tbe benefits of tbe contract and escape liability therefor. He must make restoration of wbat be bas received — put tbe other party in statu quo. He cannot both assail tbe contract and retain its fruits. — Rabbitte v. Ala. Gt. So. Ry. Co., 158 Ala. 431, 47 South. 573; Jones v. Anderson, 82 Ala. 302, 2 South. 911; Walker v. L. & N. R. R. Co., 111 Ala. 233, 29 South. 358; Young v. Arntze, 86 Ala. 116, 5 South. 253; Hoyt v. Turney, 84 Ala. 523, 4 South. 658; Wilcox v. San Jose Co., 113 Ala. 519, 21 South. 376, 59 Am. St. Rep. 135; Weliden v. Witt, 145 Ala. 605, 40 South. 126; Royal v. Goss, 154 Ala. 117, 45 South. 231; Harrison v. Ry. Co., 144 Ala. 246, 40 South. 394, 6 Ann. Cas. 804.

Under tbe issues and theory upon which the case was tried, the verdict for the defendants was not authorized by the evidence, and the plaintiffs’ motion to set aside the verdict should have been granted.

For the errors pointed out the case must be reversed.

Eeversed and remanded.  