Gibbony v. R. W. Wayne & Co.
Supreme Court of Alabama
Appeal from the Circuit Court of Mobile. Tried before the Hon. Wm. S. Anderson. Tin's action was brought by the appellees against the appellants to recover the price of certain cross-ties delivered by the plaintiffs to the defendants and accepted by them. The complaint as originally filed contained two counts. The last count contained the usual allegations under the common counts for an amount due upon an account and for goods, wares and merchandise sold to the defendants.
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Appeal from the Circuit Court of Mobile. Tried before the Hon. Wm. S. Anderson. Tin's action was brought by the appellees against the appellants to recover the price of certain cross-ties delivered by the plaintiffs to the defendants and accepted by them. The complaint as originally filed contained two counts. The last count contained the usual allegations under the common counts for an amount due upon an account and for goods, wares and merchandise sold to the defendants. The 2d count set out the contract which was made by virtue of a proposition made by plaintiffs to the defendants to…
1Opinion of the CourtSharpe, J.
In the absence, of stipulation to the contrary, (me who/ voluntarily accepts and retains goods sold to him and delivered in part performance of a contract is nndetr legal obligation to pay for such goods, and though in a suit to enforce that obligation he may recoup damages sustained by him from any breach of the contract occasioned by the seller, he is not entitled to set up such breach in bar of the suit. — Dalton v. Bunn, 137 Ala. 175; Watson v. Kirby, 112 Ala. 436; Benj. on Sales, 690. This principle justifies the disposition, made in the trial court, of pleas 2, 3, 4 and 10.
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2Cases cited8 opinions
- Castleman v. JeffriesSupreme Court of Alabama · 1877
- Proctor v. ColeIndiana Supreme Court · 1885
- Watson v. Kirby & SonsSupreme Court of Alabama · 1895
- Prather v. Western Union Telegraph Co.Indiana Supreme Court · 1883
- Jones v. BlairSupreme Court of Alabama · 1876
3 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- Graham v. MeddlebyMassachusetts Supreme Judicial Court · 1913
- A. P. Carrico Son v. J. E. Duval Printing Co.Supreme Court of Alabama · 1929
- Vance v. Forty-Eight Star MillNew Mexico Supreme Court · 1949