70 So. 294 | Ala. Ct. App. | 1915
A statement of the facts relied on by plaintiff for recovery, and sufficient to an understanding of the case, is found in count 6 of the complaint, the substance of which will, be hereinafter set out, and to which the defendant pleaded, in addition to the general issue, two special pleas numbered, respectively, 5 and 6, whose substance is hereinafter set out. The overruling of a demurrer to these pleas, as well as the sustaining of a demurrer to plaintiff’s replication to them, constitute the
The two special pleas of the defendant, before mentioned, and numbered 5 and 6, respectively, set up, each, in substance,, that the contract of said Stevens with defendant had not been fully performed, but that after said Stevens had partly performed the same he became unable to complete it by reason of a. lack of funds and failed to fully perform it; that thereupon defendant and said Stevens entered into a compromise agreement, whereby each released and discharged the other from any and! all liability under the contract — the defendant releasing and discharging said Stevens from liability for the mentioned breach- and the said Stevens releasing and discharging defendant from, liability for any further payments for services actually performed — upon the payment by defendant to said Stevens of $300,. which, in addition to the payments, totaling some $900, previously made to plaintiff as said Stevens’ assignee, it was agreed! between defendant and said Stevens, in view of the compromise, was adequate consideration for the services actually performed! by said Stevens. The pleas further alleged that, upon making said compromise agreement, the $300 to be paid thereunder by defendant was, with the consent of said Stevens, tendered to the-plaintiff, as the assignee of said Stevens, and that, upon plaintiff’s refusal to accept it, it was paid to said Stevens in conclusion of the agreement.
The demurrer raises the point that the pleas are not a sufficient answer to the complaint, in that it appears from the facts as disclosed in the complaint and the pleas that the defendant was without right, by any compromise agreement with said! Stevens, to conclude the plaintiff as to the amount said • Stevens: was entitled to for the services performed under the contract, unless assented to and acquiesced in by the plaintiff, which was-not alleged. We are of opinion that the point is well taken. According to the averments of the plea, the contract between-Stevens and defendant was terminated before it was fully performed. Upon such termination, whether by mutual consent of defendant and Stevens, or by a breach on the part of Stevens, the plaintiff’s rights as the assignee of said Stevens became fixed! and were not subject to be subsequently disturbed by agreements, between Stevens and defendant to which plaintiff was not a party. Whatever sum, if any, the defendant may, at the time of
The pleas'-probably have other deficiencies - as well as those pointed out. By what we have said we do not mean to be understood as holding that the contract between Stevens and defendant was such an one,' or of such character, as that, after its breach by Stevens, he, büt for the assignment and the accord and satisfaction mentioned, which was binding on him, would have been entitled to recover of defendant on a quantum meruit for.the services actually performed. Whether he would have been so entitled or whether he would not are questions not presented, since the pleas mentioned assume that he' would. If he would not, by reason of his breach, be "entitled to recover at all, then the' plaintiff, as his assignee and who stands in his shoes,' could not recover. The pleas here, however, while alleging a breach of the contract by Stevens, in effect concede that, notwithstanding the breach, he was entitled to recover of defendant some amount on a quantum meruit for services performed. So conceding and showing, as the pleas do, that the amount was unliquidated and uncertain, the defendant could not by agreement with Stevens, without the consent of plaintiff, his assignee, conclude plaintiff as to the amount.
The demurrers, we think, sufficiently raise this point, and we consequently, hold that the court erred in not sustaining them.
Reversed and remanded.