Street v. Kelley & Co.

59 Ala. 355

• Court: Supreme Court of Alabama
• Decided: December 15, 1877
• Status: Published

Opinion

STONE, J.—

The complaint in the present record contains only the common counts. Many pleas Avere filed, demurrers' to Avhich Avere overruled. And several replications Avere then filed to the pleas, demurrers to Avhich were sustained.. The whole case, according to the proof, very properly turned on the plea of non assumpsit; and, as we think no special pleas Avere necessary, and no result Avas, or could have been brought about by their interposition, Ave will not consider the rulings on demurrer.

The contract, out of Avhich this suit greAV, is certainly a.very unusual, if not a very loose one. It shows confidence on Mr. Street’s part, bordering on credulity; and, forming our opinion on the evidence furnished by this record, his confidence has been greatly abused. Few, if any contracts have come before us, by which one party has bound himself to the extent the appellant seems to have done, and yet surrendered to others well nigh all security for his reimbursement. He was to furnish supplies in merchandise and money, approximating eight hundred or one thousand dollars per month, to parties who, from appearances, had no other means of paying him than the products of their labor, thus supplied and sustained by his means; say, some twelve hundred dollars per month; and at the same time consenting that sixty per cent, of such products should be withheld, and two-thirds of that sum consumed in other uses. As to the remaining forty per cent., his only claim was, to receive it, if the parties, to whom he furnished the supplies, consented thereto. Thus providing inadequate security in any event, and leaving that to the option or caprice of his debtor. The contract expressly releases E. B. Nelson, the person contracting with him, and S. C. Kelley & Co., represented by E. B. Nelson, from all personal liability; releases the charcoal to be produced—(the business of the enterprise)—from all lien or claim; and for a time, the duration of which neither the contract nor the evidence furnishes any means of determining, consents to look to forty per cent, of the products for Street’s reimbursement, “if so directed by said Hobbs brothers,” the persons advanced to, or, if paid “by their consent.” They refused to give their consent, but for some reason not explained satisfactorily, forbade Nelson to pay Street anything. The reason given by them was, that Street had failed to furnish supplies according to contract. According to the testimony, he had furnished over fifteen hundred dollars in forty days.

The theory on which it is claimed this suit can be maintained is, that Street can sue for the value of the merchandise and money furnished, because the contract has been violated and broken on the other side. If Nelson, or S. C. Kelley & Co. were personally bound for the performance of the contract made by Hobbs Brothers, this might be the case. So far from this being so, the contract, as we have seen, not only does not bind them, but prohibits Nelson from paying Street, without the consent of Hobbs Brothers. If Nelson, or Kelly & Co., committed any fault, breach of contract, or of duty in this transaction, the record fails to show it.

Under the facts shown in this record, the plaintiff never can recover; and if the Circuit Court had even erred in the rulings on demurrer, or in receiving evidence, it is error without injury, and furnishes no ground for reversal.—1 Brick. Dig. 780, §§ 96, 97.

The judgment of the Circuit Court is affirmed.