Opinion
7 Div. 629.
March 24, 1927.
Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.
Hugh Reed, of Center, for appellant.
Illegality of any item entering into a promissory note renders the whole note void. The demand of an account stated is essentially the same as that of a promissory note, and one illegal item making up the same would render the whole account void. Reed v. Robinson, 213 Ala. 14, 104 So. 130; Wadsworth v. Dunnam, 117 Ala. 661, 23 So. 699; Western Union v. Young, 138 Ala. 240, 36 So. 374; Pride v. Comm. Union, 9 Ala. App. 334, 63 So. 803; Code 1923, § 6880; Code 1907, § 4029; Peeples v. Yates, 88 Miss. 289, 40 So. 996; Murphey v. Springs Co., 200 F. 372, 118 C.C.A. 524, 45 L.R.A. (N.S.) 539; Nash-Wright v. Wright, 156 Ill. App. 243; Elmore v. Stonebraker, 202 Mo. App. 81, 214 S.W. 216.
T. Ben Kerr, of Piedmont, for appellee.
The complaint is in Code form, and is sufficient. Code 1923, § 9531 (1) (11), 9458. An amendment to the complaint, after evidence is in and before the charge of the court, is proper. Smith v. Vaughn, 18 Ala. App. 91, 89 So. 302; Fields v. Karter, 121 Ala. 329, 25 So. 800; Springfield F. I. Co. v. De Jarnett, 111 Ala. 248, 19 So. 995; King v. Gray, 189 Ala. 686, 66 So. 643; Hanchey v. Brunson, 181 Ala. 453, 61 So. 258. Where the illegal item is separable from the remainder of the account, the legal items may be recovered. Sims v. Ala. Brew. Co., 132 Ala. 311, 31 So. 35; 8 C. J. 249; Ala. Nat. Bank v. Parker Co., 146 Ala. 513, 40 So. 987.
It is a complete defense to an action on a promissory note that one or more of the items entering into the consideration of the note were based upon sales or other transactions in violation of law. Wadsworth v. Dunnam, 117 Ala. 661, 668, 23 So. 699. And the doctrine has been recognized in this state that a demand based upon an account stated "is essentially the same as if a promissory note had been given for the balance," and that "the recovery is upon the assent to the balance, and the subsequent agreement to pay that balance, as if upon a promissory note." Loventhal v. Morris, 103 Ala. 332, 336, 337, 15 So. 672, 673; Reed v. Robinson, 213 Ala. 14, 104 So. 130.
Logical consistency would seem to require that the illegality of one or more items of a stated account should render the agreement to pay it invalid, and defeat the action in toto. The principle was settled long ago in this state that, where the illegal items are separate and distinct in description and in price, the plaintiff may separate the legal from the illegal items, and sue for and recover the price agreed to be paid for the former. Leverett v. Garland Co., 206 Ala. 556, 558, 90 So. 343; Pacific, etc., Co. v. Mullen, 66 Ala. 582. And this exceptional principle seems to be recognized in other jurisdictions. 13 Corp. Jur. 515, § 472. But in those cases the plaintiff abandoned his claim as for a stated account, and sued merely for the price of the articles legally sold. The difficulty here is that an action on the original account was held by the trial court as barred by the three years' limitation, to escape which plaintiff was driven to his count on a stated account.
The defense set up in plea C to count B was, if properly pleaded, a good defense to that count.
The plea necessarily imports a sale from plaintiff to defendant. It was not necessary for the plea to aver what company manufactured the fertilizer. The second and fifth grounds of the demurrer are therefore bad. The third and fourth grounds are but general demurrers, and therefore invalid. Evitt v. Lowery Banking Co., 96 Ala. 381, 11 So. 442. The first ground is bad because it is a "speaking demurrer," setting up new matter in avoidance of the defense set up in the plea.
If, therefore, there was any defect in the plea, it was not pointed out by any ground of the demurrer, and the demurrer must be held to have been improperly sustained; and, since defendant's deprivation of that defense was necessarily prejudicial, the error must work a reversal of the judgment. Other questions need not be considered.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.