Alabama Cordage & Twine Co. v. Montgomery Cordage Co.

The plaintiff's suit rested on four counts, the first declaring on a promissory note for $415.97, interest and attorney's fees, and the other three counts were on account claiming $294.87. The defendant's plea was in short by consent, with leave to give in evidence, etc. The court, sitting without a jury, rendered judgment for the plaintiff in the aggregate amount of $635, and this action of the court is here assigned as error. It was admitted that the note was executed and delivered for value received, and that the goods claimed for in the account had been shipped and received, but the defendant sought by way of recoupment and set-off to avoid payment, claiming that plaintiff had violated its contract with defendant by its failure to deliver a certain amount of twine contracted for by the defendant with plaintiff to be delivered on order before June 30, 1916, terms 2 per cent. 10 days or 30 days net.

It is true the plea of recoupment was in short by consent and informal, but, when this is the case, the evidence must supply the necessary allegations of the plea, among which are the readiness, ability, and willingness of the defendant to receive pay for the goods according to the contract of purchase. Lysle Milling Co. v. N. Alabama Grocery Co., 201 Ala. 222, 77 So. 748. The evidence, to be sure, showed a readiness and willingness to receive the goods, but it utterly failed to show present ability to pay for them according to the terms of the contract. This was fatal to defendant's case, and this fact alone would have justified a judgment for the entire amount sued for. The judgment being for a less amount, the defendant cannot complain.

There are other phases of the case that might sustain the court's findings, but, not being necessary to a conclusion, they are not here considered.

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

Affirmed.