The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1906-09-28
Head Notes Of the Decisions
Of Alabama Supreme Court

fered damages in specific sum, and
that he incurred travelling expenses in
an effort to avoid the effect of the
loss, which damage and travelling ex-
penses he offers to set of against the
| demand. Is demurrable.
q. Samoa plea In an action on a
| note. which alleges that the maker
hired safety deposit box from the
payee and deposited valuable papers
consisting OF deeds and mortgages
| therein, that the box was broken and
the papers lost. that among the pa
pers deposited was a title deed to real
estate which was sold by the maker,
but by reason of his inability to fus-
nish to the purchaser his title decd
! there was delay in closing up the
sale. during which time the maker was
in default in making the conveyance,
| and by reason of the delay and the
| loss of the title deed he was damaged
in the designated sum, which he offers
to set Off against the demand, is de-
murrable.
8. Samoa plea in an action on a
| note which alleges that the payee
| is indebted to the maker in a specifis
sum for money paid by the. maker to
the payee by mistake. which amount
he offers to set or against the demand.
IL demuxrable.
o. Same-faflure of consideration
-sufficiency.--A plea in an action
or a note. which alleges that the note
was given to the payee for apart OF
the purchase price of property which
he sold to the maker that the payee
guaranteed that the property was of a
specified value, and that the maker
would receive that amount therefor.
and that he could not realizzze from
the property such sum, is demurrable
as setting up a plea of failure of con-
sideration.
10. Same--set off.-plea- sufficien-
cy.--A plea in an action on a note,
which alleges that at the time of its
maturity the maker was indebted ID
the payee In a specified sum for money
had and received. in that the maker
was surety on a promissory note
made by third person for 5000, to
which note large number of accounts
were attached as collateral, that the
payee collected on said accounts $4,000.
which was understood at the time of
the maker becoming surety for the
third person would on collection bo
applied to the payment of the note.
and that the payee failed to credit on
the note the amount collected and
represented to the maker his inability
to make collections, is demurrable on
the ground that the maker is not en-
titled to set of the amounts collected
from the coilateraiS.
IL. Samoa plea in an action on a
note, which alleges that the payee is
indebted to the maker in a specified
sum for the conversion of certain
property, which was of a value desig-
mated. which property the maker has
demanded of the payee. but which it
has failed. to surrender, is good as
against a demurrer based on the
ground that the. plea seeks to set off
a aNalN
that there is no averment of a demand
for the property. and that 1t. is no.
shown that the payee had any money
to which the maker was entitled.
IL. Samoa plea In an action on a |
note, which alleges that the payee is |
indebted In a specified sum to the |
maker by reason of the fact that the |
payee held a mortgage on the property |
of the maker. and that in order to raise |
money to pay the same he made a sale |
thereof with the payee's consent, that |
before he could consumate the sale 1t |
was necessary for the payee to cancel |
the mortgage, which he failed for an /
unreasonable time to do. whereby the |
maker made several trips at a cost of |
a specified sum per day. and lost a |
specified number Of days at a specified
sum per day in procuring the cancella-
tion of the mortgage. is demurrable
on the ground that the plea is insult
ficient as plea of set-off. and that
the damages claimed therein are too
remote, and that the claim set forth
sounds in damages merely.
Appeal from Admission City Court.
Heard before Hon. Thomas W. Cole
man, Jr.
Reversed and Remanded. Opinion by
Dowdeli. j.
HARRISON. Anderson and benson, u
concur.
PUB. CO. VS. GRAN
FORD MER. co.
Assumpsit.-(Decide May 8. 1906
Al So. Rep. S0,)
Sales; action for price; admissible
ty of contract.-In an action for the
price of patterns sold under contract
where the defense was set off for pat
terms returned under another contract
4 written contract between the par
ties, wherein the defendant agreed to |