Barney Coal Co. v. Davis

55 So. 1023 | Ala. Ct. App. | 1911

WALKER, P. J.

The original complaint in this case alleged that plaintiff entered into a contract with defendant to dig a slope or entry and aircourse in defendant’s mine, and undertook to show a breach of the contract by the defendant by its refusal to let plaintiff proceed further with the work, whereby plaintiff was deprived of the opportunity of earning profits which, it was alleged, he could have realized if he had been permitted to contiue the work under the contract. The demuxTer to the complaint suggested a deficiency in it, in that it failed to allege that, at the time the defendant refused to let plaintiff proceed further with the work, he was able, willing, and ready to carry out and perform his part of the contract.

It hardly is necessary to have recourse to the rule for construing a pleading most strongly against the pleader to read the averment of the complaint in this case as to the plaintiff’s readiness and willingness to carry out his part of the contract sued on as showing no more than that at some time since the work was stopped by the defendant there has been snch readiness and willingness on the pant of the plaintiff. That averment conld be sustained by evidence showing no more than that, at some time subsequent to the date of defendant’s refusal to let plaintiff proceed further with the work, and before the suit was brought, the plaintiff became ready and willing to carry out his part of the contract, though at the time the work was stopped he was not ready or able to proceed further with it. It was not a breach of the contract by the defendant to stop the Avork, if at the time it was done the plaintiff was not ready or able to prpceed further with the work called for by the contract. In failing to show that such was the case, the complaint failed to show a breach by the defendant of the cdntract sued on.

A party, seeking to recover on the breach of a contract containing mutual and dependent covenants or stipulations, must aver and prove his own offer and readiness and ability to perform, and that the other party has failed to perform on his part.—Sayre v. Wilson & Ingram, 86 Ala. 151, 5 South. 157; Union Refining Co. v. Barton, 77 Ala. 148; Raudabaugh v. Hart, 61 Ohio St. 73, 55 N. E. 214, 76 Am. St. Rep. 361, and note; 3 Page on Contracts, § 1470. The ground of demurrer referred to pointed out wher,eia the complaint failed to show a breach by the defendant of the contract sued on, and the demurrer should have been sustained.

Reversed and remanded.