125 Ala. 178 | Ala. | 1899
The complaint contains three counts. In the first, the one thousand dollars sought to he recovered, it is 'alleged, is a balance due by the defendant for water supplied by the plaintiff for the months of February and March, 1894, under a contract existing between the plaintiff and defendant. It is alleged that nnder the con
The second count claims one thousand dollars and interest thereon due under its contract with the defendant for the use by it of water supplied by the plaintiff through its hydrants, plugs and mains during the months of February and March, 1894. It is alleged that the defendant owed the plaintiff $1,125 for so furnishing water for the said month of February, and $1,125 for so furnishing water for the month of March, to-wit $2,250. It is further alleged that the defendant has paid to the plaintiff $1,250, leaving a balance due to the plaintiff on and under said contract of $1,000 for said two months’ service of water. “Plaintiff alleges that it furnished the water according to the. terms of said-contract to the city, and otherwise complied with the provisions of said contract on its part, but that the city has refused and still refuses to pay it for such service and said water,” etc.
The third count claims one thousand dollars due by account, and a like sum of $1,000 for merchandise, goods and chattels sold by plaintiff to defendant.
It will be well to note that neither of the counts set out the contract or its provisions so as to show what the obligations were the plaintiff had to comply with.
To the entire complaint the defendant filed six pleas. On motion of the plaintiff, pleas 2, 3 and 4 were stricken, leaving the plea of the general issue and two special
Special plea 6 alleges that the plaintiff forfeited to the city of Mobile the money now sued for because it did not on March 16, 1894, furnish for fire service for, to-wit, an hour during a conflagration in Mobile, within reach of its hydrants, through 300 feet of two and a half inch double leads of hose with one and one quarter inch nozzle, six vertical streams of water of sixty feet in height each, all in violation of the contract noAV declared on by the plaintiff, and that such forfeiture is duly proAdded for in said contract, and has been and is claimed by this defendant.
To these two pleas the plaintiff filed several special replications which were stricken on motion of the defendant. The special replications 1 and 2 to the fifth plea are simply a recital of evidential facts, which neither confess nor avoid the allegations of the plea they profess to answer. Such facts as were pertinent to the issue tendered by the plea were competent to be introduced in evidence under the general issue taken upon the plea. Mead v. Hughes, 15 Ala. 141.
The special replications 1 and 2 to the sixth plea are no more than a general replication to that plea. The special replications to the 5th and 6th pleas filed January 27, 1.898, only recite the provisions of the contract under which the plaintiff was obligated to furnish the water in the manner and to the extent as averred in the pleas, with an averment that it complied with the provision of the contract. These tendered the same issue as was tendered by the averments of the first and second counts of the complaint. The court committed no error in granting the motions to strike each of the special replications.
There was no error in excluding the testimony of T. G-. Bush and E. P. Bestor offered by the plaintiff to show that water was being use.d from fire plugs in certain cotton warehouses to wet the cotton stored in them. It did not tend to support any of the issues made by the pleadings in the rase.
The plaintiff failing to prove its special replication to plea 5, and the defendant having proven the facts as alleged in said plea without conflict, the court could have properly given the affirmative charge if it had been requested for the defendant upon that plea.
Objection was taken to the testimony of witness Vail introduced by the defendant, showing the velocity of the wind during the time the fire was raging. With this testimony in or out of the case, the result would be the same. Its introduction did not strengthen the case in so far as affects the defendant’s right to have the jury instructed affirmatively to find a verdict in its favor upon the issue made by the fifth special plea. This brings the case clearly within the rule, often announced by this court, that when, on the undisputed facts, a plaintiff or a defendant was entitled to the general affirmative charge, any errors committed by the court in special rulings are not ground of reversal at the instance of the party appealing, since they could not have injured him.— Glass v. Meyer, 124 Ala. 332; Seymour v. Farquhar, 93 Ala. 292; Pritchett v. Pollock, 82 Ala. 169, and authorities there cited.
Affirmed.