On application for rehearing I have reached the conclusion that there was no reversible error in overruling defendant's demurrers to replications A and B to defendant's plea of non est factum.
These being the rulings on which the judgment was reversed on the original hearing, and the members of the court then being divided four to three, it results that the change of my vote on those rulings changes the result from a reversal to an affirmance. I therefore deem it proper to state briefly the reason which induced me to change my opinion. On a more careful examination of the replications I find that they allege facts which, if true, show the defendant did execute the contracts sued on, the execution of which the plea of non est factum denied.
The replications are, therefore, in legal effect, a traverse of the plea, though in form special ones of confession and avoidance or estoppel.
While a demurrer might have been sustained to them without error because they were in effect mere traverses of the plea, yet overruling the demurrers to such replications is not error to reverse. No possible injury did or could thereby result to the appellant, defendant below.
The replications set forth a number of facts; the demurrers thereto admitted them as true. If all the facts alleged in either replication were true, the defendant did, in fact and law, execute the contracts sued on, and the plea of non est factum was therefore disproved.
In other words, had there been no special replication, but only a traverse of the plea, and the facts set forth in the replication had been proven without dispute, the plaintiff would have been entitled to the affirmative charge, with the usual hypothesis as to this plea. This being true, no possible injury could result to the defendant by overruling the demurrer to the replication; the plaintiff had to prove the facts set forth therein or he failed as to the replication.
It is needless to cite authorities to the proposition that overruling a demurrer to a special plea is without injury if the plea amounts to complete denial or traverse of the declaration; and the same is necessarily true as of a special replication to a plea. I will cite two cases, however: So. Ry. Co. v. Hobbs, 151 Ala. 335, 43 So. 844; Wright v. Forgy,126 Ala. 389, 28 So. 198.
The facts in the latter case were very similar to the facts in this case. That was a suit on a bond, and the defendant pleaded non est factum. To this plea the plaintiff replied, setting up the facts which showed the mode and manner in which the bond was executed. The defendant demurred to the replication, and his demurrer was overruled; and this court held it was without error, because nothing was set up in the replication except that which was available under the general issue or traverse of the plea.
The facts alleged in these replications are very similar to the facts proven in the recent case of Ga. Cas. Co. v. Massey,79 So. 33,1 and that of the case of Phillips v. Whitney,109 Ala. 645, 20 So. 333. In both of these cases it was held that the contracts in question were properly executed by the corporation.
I am therefore of the opinion that the rehearing should be granted, the judgment of reversal set aside, and one of affirmance entered.
Justices SOMERVILLE, GARDNER, and THOMAS concur in the opinion of the writer, which results in granting the application for rehearing, and setting aside the judgment of reversal and entering one of affirmance.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., dissent.
1 201 Ala. 601.