[Watson v. Kirby & Sons.]

faith of such representations of plaintiff, upon which they relied and believed to be true, made contracts for the sale of the lumber to be sawed out of said logs to solvent parties, for cash, as soon as they could saw them into lumber, to be delivered to such purchasers, at Margerun, Bear River; that by reason of the fraud and deceit of plaintiff the defendants were unable to carry out the contract with said purchasers and get the benefit of the profit that would have accrued to them therefrom, which would have amounted to, towit, fifteen hundred dollars, which defendants hereby recoup against plaintiff's demand, and they ask judgment for the excess."

"10. And for further plea in this behalf defendants say that they entered into the contract as set out in the first plea filed herein, that at the time said contract was made, plaintiff represented that he had more than two hundred thousand feet of poplar logs cut and ready for delivery on said Bear river, Scribner's measure, that would pass regular inspection as to damage, flaws, etc., that under the terms of the said contract, it was agreed that the poplar logs referred to therein should pass regular inspection as to damage, flaws, etc., and defendants aver that said words, 'subject to regular inspection as to damage, flaws, etc.,' contained in said contract meant that only merchantable or good poplar logs could be delivered thereunder; that by reason of said representations defendants were induced to make said contract; that said representations were falsely and fraudulently made with the intent of inducing said defendants to make said contract; that defendants made said contract with plaintiff for the purpose of sawing the poplar logs into lumber for sale and profit, and that this purpose was known to plaintiff; that at the time said contract was made, and until this suit was brought, there were no good poplar logs, or logs that would pass the inspection provided for in said contract, of the quantity in said contract provided for, cut and ready for delivery procurable on said Bear river at defendants' said mill, and this was known to plaintiff; that if plaintiff had delivered 200,000 feet of poplar logs under the terms of said contract, it would have furnished defendants with lumber of the following qualities and quantities, towit, of 1st and 2nd class, 120,000 feet; of common, 48,000 feet; of shipping culls, 24,000 feet; of mill culls, 8,000;

[Watson v. Kirby & Sons.]

that defendants had contracted for the sale of the produce of lumber of the said logs to solvent parties, for cash, at the following prices, at defendant's said mill, towit, for 1st and 2nd class poplar lumber at $16 per thousand feet; for common at $7 per thousand feet; and for shipping culls at $4 per thousand feet, and that at said prices said poplar logs would have, if delivered according to said contract, been sold at. towit, $2,352. That plaintiff delivered about 116,000 feet of poplar logs that were very inferior, and that would not have passed regular inspection as to damage, flaws, etc., but that, because of defendants' inability of getting other poplar logs at said mill, it was agreed to measure the lumber sawed, without waiving defendants' rights against plaintiff for failing to deliver all of said logs according to his said contract; that said logs so delivered, when cut, produced lumber as follows, towit: of 1st and 2nd class, towit, 20,000 feet; of common, to wit, 20,000; of shipping culls, towit, 20,000 feet, which would have sold under the terms of said contract of sale for, towit, $560; and defendants aver that they were ready and willing to receive, and ready, willing and able to pay for, all the logs delivered by plaintiff under said contract, or that should have been delivered under said contract; and defendants aver that by reason of plaintiff's failure to deliver said poplar logs under said contract as herein shown, they were damaged in the sum of, towit, $1,700, which defendants hereby recoup against plaintiff's demand, and they ask for judgment for the excess.”

The plaintiff made the following motion: "Comes the plaintiff and moves the court to strike from the files plea No. 10, because it sets up two separate and distinct defenses in one plea. 2d. And he moves to strike out the allegations of said plea, stating what defendants could have gotten for lumber sawed from 'good poplar logs,' because the contract set up in said plea shows on its face that it was not a contract to deliver any particular quality of lumber. 3d. Because the plea raises an immaterial issue. 4th. And he moves to strike out that part of plea No. 10 stating that 200,000 feet of good poplar logs would have furnished lumber of certain quality and quantities, because it presents an immaterial issue; and because the contract set up in said plea does not stipulate for the delivery of logs of any particular qual

[Watson v. Kirby & Sons.]

was overruled:

ity." This motion was overruled. Thereupon the plaintiff demurred to the 7th plea, upon the following grounds: "1st. Because the matters and things set up in said plea can not be set up as an offset to plaintiff's action in this cause. 2d. Because the damages claimed by the defendant in said plea No. 7 sounds in damages merely, and is not available as a plea of set-off. 3d. Because the contract set up in said plea is not the foundation of plaintiff's cause of action in this cause. 4th. Because the alleged fraudulent representations were made prior to the execution of said written contract set up in said plea, and the damages alleged to have resulted is not a legitimate subject of set-off or recoupment in this cause."

To the 10th plea the plaintiff demurred upon the following grounds: "1st. Because the alleged fraudulent representations were made before the contract mentioned in said plea was executed, which is the sole memorial of the agreement of the parties then made. 2d. Because the contract shows on its face as set out in the plea, that plaintiff was to deliver a particular lot of logs regardless of their quality or quantity. 3d. Because the damages claimed in said plea sounds in damages, merely, and is not available as a set-off in this motion. 4th. Because the fraudulent representations complained of do not grow out of the contract set up and referred to in said plea. 5th. Because the alleged false representations are not set up in said contract, and they become no part of the contract between the plaintiff and defendants. 6th. Because the profits which the defendants alleged they would have made on the logs, if they had been 'good poplar logs' is not a legitimate subject of set-off in this case, as the contract set up and referred to in said plea stipulates for the delivery of a certain lot of logs without reference to their quality or quantity. 7th. Defendant fails to set out in detail and definitely the way and manner by which he would have obtained the profit of five dollars on each one thousand feet of lumber sawed. 8th. And because. said plea failed to aver sufficient facts upon which to arrive at any measure of damages sustained by the defendant. 9th. Because it is not shown where defendants could have sold the lumber at prices stated in said plea, or cost of transportation, and expense of hauling same." These demurrers were overruled, and the plaintiff duly

[Watson v. Kirby & Sons.]

excepted. The plaintiff then filed replications to the several special pleas. The defendants interposed demurrers to these several replications, which were sustained. To each of these rulings the plaintiff separately excepted; but under the opinion of the court, it is unnecessary to set out these replications and demurrers at length.

The cause was tried by the court without the intervention of a jury, and upon the hearing of all the evidence, the court rendered judgment for the defendants on the plea of payment, and upon the defendants' plea of recoupment rendered judgment in their favor against the plaintiff, for an excess due the defendants from the plaintiff. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

KIRK & ALMON and CANDLER & CANDLER, for appellant, cited Watson v. Kirby, 112 Ala. 436; Wilcox v. Henderson, 64 Ala. 535; Brown v. Freeman, 79 Ala. 409; 1 Benjamin on Sales, p. 559.

JAMES JACKSON, J. H. NATHAN and W. H. SAWTELLE, contra.-Even if the court erred in the rulings upon the pleadings, it was error without injury; and in this case would not justify a reversal of the judgment of the lower court.-Pate v. McConnell, 106 Ala. 452; Russell v. Jones, 101 Ala. 261; Payne v. Crawford, 102 Ala. 397; Milligan v. Pollard, 112 Ala. 465; Nat. Bank v. Cheney, 114 Ala. 536.

When a contract for the sale of goods has been executed, the plaintiff can declare on the common counts. The purchaser, when so sued for the price or value of goods delivered, can certainly set out the contract, and show such defenses as he can legally interpose thereto.Jones v. King, 81 Ala. 286; Watson v. Kirby & Sons, 112 Ala. 436.

COLEMAN, J.-The present litigation grew out of the following written agreement:

"Iuka, Miss., Nov. 6th, 1894. "Know all men by these presents that I, C. L. Watson, do hereby agree to put a certain lot of poplar logs, now in Bear Creek, into the boom at Watson & Hughes'

[Watson v. Kirby & Sons.]

mill for William Kirby & Sons for the sum of five (5)) dollars per thousand feet scribner measure, and subject to regular inspection as to damage, flaws, etc. I further agree with the said Kirby & Sons to put the logs there, just as soon as the stage of the water will permit them to be run. It is further agreed and understood that the price of five (5) dollars per thousand feet, shall be due and payable as soon as said logs are inspected and measured in the booms which shall be done immediately on their delivery into the boom, said logs estimated to be between two hundred and three hundred thousand feet which are cut and ready to be run when the water rises sufficiently."

Watson sued, and the case was tried by the court without a jury. The first count of the complaint counts upon the contract and claims nine hundred dollars for "a lot of logs sold" to the defendants, and avers a delivery to the defendants of the logs, under the contract, and that they sawed 200,000 feet, at five dollars per thousand, upon which the defendants were entitled to a credit of one hundred dollars.

The second count is in the common form for "poplar logs, merchandise, goods and chattels sold and delivered to defendants at their instance and request."

There were two other counts added, it seems, during the progress of the trial. The first of these, which makes the third count of the complaint, sets out the above contract in full, and avers that after a delivery of a portion of said logs under the contract, to-wit, the amount of 177,432 feet, the defendants repudiated said contract and refused to receive the balance of said logs and pay for the same, and refused to measure and pay for the logs as stipulated in the contract, and by sawing and converting some of the logs to their own use before the stage of the water on Bear Creek would permit the balance of the lot of logs to be delivered to the defendants, became indebted to the plaintiff for the 177,432 feet received by them, and then admits a credit of one hundred dollars.

The 4th and last count also sets out the contract in full and claims payment for 177,430 feet of poplar saw logs sold to defendants. It avers "that said lot of logs measured 177,430 feet after deducting all damages, flaws, etc., as stipulated in said contract, and that the