Shannon & Co. v. McElroy
Alabama Court of Appeals
Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Assumpsit by W. P. McElroy against Shannon & Company, and another. Judgment for plaintiff and defendant appeals. The 3rd plea is as follows: There is no consideration for the account sued on.
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Appeal from Walker Law and Equity Court. Heard before Hon. T. L. Sowell. Assumpsit by W. P. McElroy against Shannon & Company, and another. Judgment for plaintiff and defendant appeals. The 3rd plea is as follows: There is no consideration for the account sued on. The court erred in striking plea 3. — Olosky v. Enslen> 103 Ala. 97; 3 Ala. 316. It set up a defense which was required to be specially pleaded. — 4 Mayf. 484. The court erred in failing to grant defendant’s motion for a new trial.- — S'O; Ry. Oo.-v. Lollar, 135 Ala. 379; 108 Ala. 233; 131 Ala. 422. The matters set up by plea 3 were…
1Opinion of the CourtWalker, P. J.
The defendant was not prejudiced by the action of the court in striking his third plea. The *520defense of want of consideration was available to him under his plea of the general issue. In assumpsit, under the general issue, any matter which shows that the plaintiff never had any cause of action, or that, ex aequo et bono, he ought not to recover, may be given in evidence. That plea puts upon the plaintiff the burden of proving every fact which is an essential constituent of his cause of action.
The express or implied promise upon which such action is based requires a consideration for its legal…
2Cases cited3 opinions
- Alabama Gold Life Insurance v. Mobile Mutual InsuranceSupreme Court of Alabama · 1886
- Robinson v. WindhamSupreme Court of Alabama · 1839
- Matthews v. TurnerSupreme Court of Alabama · 1832
3Cited by4 opinions
- Singer Sewing Machine Co. v. TeasleySupreme Court of Alabama · 1916
- Bozeman v. J. B. Colt Co.Alabama Court of Appeals · 1923
- Daniel v. HughesSupreme Court of Alabama · 1916
- Bryant v. De Kalb Warehouse Co.Supreme Court of Alabama · 1954