48 Ala. 33 | Ala. | 1872
Can the ruling of the court, sustaining the demurrer to the special count of the complaint, be reviewed on this appeal ? Where a plaintiff takes a non-suit, the right to appeal to this court, to have the same set aside, is given by § 2759 of the Revised Code, which is in the following words, to-wit: “When, from any decision of “the court, on the trial of a cause, it may become necessary for the plaintiff to suffer a non-suit, the facts, point “or decision, may be reserved for the decision of the supreme court, by bill of exceptions, as in other cases.” As this right is given and depends, wholly, upon this section of the Revised Code, it must be confined and limited to cases clearly within its purview and meaning. We hold, that this section does not apply to decisions of the court, made on demurrers to the pleadings, but to such decisions of the court, only, as are necessarily made a part of the record, by a bill of exceptions; and as a bill of exceptions is never necessary to enable the plaintiff to revise the decision of the court, sustaining a demurrer to his complaint, such a decision does not authorize him, under said section,
2. The demurrer to the special count being sustained, the case, then, stood on the common counts only, and on them, it is very clear, the plaintiff could not recover. The-common counts are only appropriate, when the action is indebitatus assumpsit, or debt on simple contract.
In this case, the action is neither the one nor the other, but an action, in the nature of an action of covenant, founded on a special agreement, under the hands and seals of the parties, imposing on them mutual and reciprocal obligations.
The evidence offered by the plaintiff, and excluded by the court, disclosed the special agreement, set out in the special count of the complaint, to which the demurrer had been sustained. This evidence showed that the defendant’s liability, whatever it might be, depended upon said special agreement, and, therefore, a recovery could only be had on a count framed on said agreement, and not on the common counts.
The rule is, where the terms of a special unsealed agreement have been performed by the plaintiff, so that only a duty to pay money remains, indebitatus assumpsit will lie, but where the agreement is still open, or is to be performed in future, the count must be framed on the agreement. Hunter v. Waldron, 7 Ala. 753; 1 Saunder’s Rep. 269 a, note (m.)
Where the plaintiff’s right to the money depends upon a subsisting agreement between the parties, the action must- be on the agreement, but, if the plaintiff’s right to the money is wholly independent of the agreement, he may then recover on the common counts. — Stent v. Hunt, 3 Hill’s (S.C.) 223. But where damages are claimed for the breach of 'a special contract, fhe plaintiff must count upon the contract. — Royalton v. R. & W. Turnpike Co., 14 Vermt. 311. Where, however, the plaintiff declares on a special agreement, seeking to recover thereon, but fails, he may recover on the general counts, if the case be such
In this case, no recovery could be had independent of the Special agreement, disclosed by the evidence. The defendant’s liability, if existing at all, depended wholly upon said agreement, consequently, if the special agreement, it had been unsealed, the plaintiff could only recover on a count framed on the agreement, and not on the common counts. For these reasons the evidence offered by the plaintiff, and objected to by the defendant, was properly excluded. Whether the court below excluded it for a right or a wrong reason, need not be decided.
Let the non-suit stand. The judgment is affirmed, and the appellant will pay the costs of the appeal in this court and in the court below.