Carmelich v. Mims

88 Ala. 335

• Court: Supreme Court of Alabama
• Decided: November 15, 1889
• Status: Published

Opinion

SOMEBYILLE, J.

1. The second and third pleas were manifestly demurrable in failing to state the facts, which, in the one case, constituted the alleged “failure of consideration,” and in the other the alleged “fraudulent misrepresentation,” relied on by the defendant as a defense to the suit. Phœnix Ins. Co. v. Moog, 78 Ala. 284, 301, and cases cited; Code, 1886, § 2674.

An entirely different case would be presented, if ordinary pleas had been interposed by their respective and well known names, as recognized in the settled nomenclature of pleading, or by common practice, and this had been done ’“in short by consent.” The substance and legal effect of such pleas are well understood, and the practice of pleading in this succinct and convenient mode has long prevailed in this State. — Pollard v. Stanton, 5 Ala. 451; Lacy v. Rockett, 11 Ala. 1002; Governor v. Bancroft, 16 Ala. 605; Reid v. Nash, 23 Ala. 733.

A motion to strike the pleas from the files was unnecessary, the objection being properly raised by demurrer; and the sustaining of the demurrers was free from error,

2. The fourth plea, which sets out certain specific facts as a failure of consideration — by way of special plea — was also defective, and subject to demurrer. Its merit materially depended on two facts: First, that the policies of insurance delivered to the defendant varied in certain important particulars from those agreed to be delivered by the agent of the company, by failing to incorporate specified conditions; and, secondly, that the defendant refused to accept these policies after examination of their contents, and returned them within a reasonable time.

In our opinion, the plea should have set out so much, in substance at least, of the policies actually delivered, and of those agreed to be delivered, as to enable the court to pass upon the question of material variance in the provisions of these instruments. And so of the time when the defendant received the policies actually delivered, and how long he retained them in possession before returning them for rescission. The question of what is “a reasonable time” in such case, is often one of law for the court to determine, where the facts are not controverted, and thejjinferences to be deduced from them are clear; and it may be that this was a case of that nature. — Aymar v. Beers, 17 Amer. Dec. 538; note, 544; 2 Parsons Contr. (7th Ed.) *677; Sheffield L., I. & C. Co. v. Neill, 87 Ala. 158; Holbrook v. Burt, 22 Pick. 546.

3. The note sued on, being payable at “a designated place,” is commercial paper within the meaning of our statute. The action was, therefore, properly instituted in the name of the plaintiff, as the holder of the legal title. It is not a case in which the action is required to be brought in the name of the beneficial owner. — Code, 1886, § 2594; Ala. Coal Mining Co. v. Brainard, 35 Ala. 476.

The demurrers were properly sustained to all the pleas, and the judgment is affirmed,