Kirby v. Forbes

141 Ala. 294 | Ala. | 1904

HARALSON, J.

The suit is on a bond executed by defendants, in the sum of $1,000.00, to contest a claim of exemptions. It appears from the complaint that the defendant, Forbes, obtained a judgment in the circuit court of Marshall county, on the 19th day, of May, 1899, against the plaintiff, F. M. Kirby, for $320, on which judgment an execution was issued; that on the same day the judgment was rendered, the defendant in execution, filed in the probate court of the county, under Section 2041 of the Code, his claim of exemptions to specified personal property, of the value of $500.00; that on the 22d day of June, 1899, the plaintiff in execution, proceeding under Section 2046 of the Code to contest the defendant’s said claim of exemptions, made affidavit, that said claim Avas invalid entirely, and executed a bond in the sum of $1,000.00, payable to the defendant, Avith the following condition: “Now if thei plaintiff will prosecute said contest to effect, or failing therein will pay the defendant, F., M. Kirby, all such costs and damages as lie may sustain, this obligation to be void, other-Avise to remain in full force and effect.” The condition of such bond as prescribed by the statute is, “that if the plaintiff fails in the contest, he Avill pay the defendant, all such costs and damages as he may sustain by reason of the Avrongful institution of the contest.”

The plaintiff in this suit, as AA^as permissible, set out in his complaint the condition "of the bond, and assigned five separate breaches thereof. — Anderson v. Dickson, 8 Ala. 733.

The defendant demurred to each breach assigned, and the court sustained the demurrers. Thereupon, the plaintiff filed an amended complaint, assigning three breaches, to which demurrers were separately interposed and sustained. Motion was also made to- strike the second count in the amended complaint, which was granted. The plaintiff declined to plead further, and the. cause having been submitted to the jury, they found a verdict for the defendant.

The errors assigned are, that the court erred in sustaining the demurrers of the original and amended complaints, and in sustaining the motion to strike the second count in the amended complaint.

The 2d, 3d, 4th and 5th assignments of breach of the bond in the original complaint fail to show any breach of the bond, in that there is no averment that defendant failed to prosecute the contest to effect. The demurrer to this complaint was, therefore, properly sustained; but the demurrer to the amended complaint should have been overruled. Tlie general rule is, that it is sufficient if the breach be assigned in the words of the contract, if the language employed be coextensive with the condition, and negatives its performance. — Pryor v. Beck, 21 Ala. 393. This amended complaint sufficiently describes. the bond, and it alleges its breach. — Baker v. Pope, 49 Ala. 415; Anderson v. Dickson, supra.

The first assignment of breach was a special and specific claim of attorney’s fees and was sufficient for that purpose. — Dothard v. Sheid, 69 Ala. 138; A. G. S. R. Co. v. Tapia, 94 Ala. 226.

The second assignment was a claim by plaintiff for damages for expenses in attending court for several terms; for loss of time from his regular employment in doing SO', and hotel bills incurred, constituting legitimate elements of damage. The motion to strike this assignment of breach was, therefore, improperly granted. In both assignments, the averment appears that defendant wrongfully instituted said contest and failed to prosecute the same to effect.

The 3d assignment was bad in that it does not aver any damages for breach of said bond.

For the errors indicated, the judgment below is reversed and the cause remanded.

Reversed and remanded.