63 So. 982 | Ala. | 1913
— “While a condition Avhich qualifies or defeats the plaintiff’s claim, being a condition subsequent, may be safely ignored by the plaintiff in his pleading, it may„ be stated, as a general rule, that performance by the plaintiff of a precedent condition must be averred in a complaint or declaration.” “In lieu of allegations of performance the plaintiff may allege facts in excuse of performance. Thus it is sufficient to aver that the defendant disabled himself from performing his covenant to convey certain land by conveying it to a stranger, or that the defendant repudiated his contract, or that the defendant has prevented performance.An averment that the defendant has Avaived performance on the part of the plaintiff is also sufficient to dispense Avith an allegation of performance. The Avaiver must, however, clearly appear. If plaintiff intends to-rely on facts which show a waiver of performance on the part of the defendant,' he must plead such facts. He cannot plead performance and recover under proof of a waiver of performance.” — 4 Am. & Eng. Ency. PI. & Pr. 627-629.
“When mutual covenants go to the whole consideration of both sides, they are dependent conditions, and
“If there was in fact neither performance nor a tender of performancce, it has been held that an averment of readiness and willingness to perform is necessary and sufficient.” — 4 Am. & Eng. Ency. Pl. & Pr. 639; Jones v. Somerville, 1 Port. 437; Broughton v. Mitchell, 64 Ala. 210.
“It is a well-settled rule of law that when a Contract is dependent — that is, when one agrees to sell and deliver, and the other to pay on delivery, in order to entitle either party to sue for a breach — he must show that he was able and ready to perform his part of the agreement.” — Davis v. Adams, 18 Ala. 266; Brady v. Green, 159 Ala. 482, 48 South. 807; Elliott v. Howison, 146 Ala. 568, 40 South. 1018.
In passing upon a demurrer to a complaint or plea, the allegations must be taken more strongly against the pleader, and no inferences must be indulged, in order to import correctness into same.
The third count of the complaint in the case at bar was subject to defendant’s eighth and ninth grounds of demurrer. The complaint does not aver that the cot,ton was paid for in advance, or was to be paid for at
In the absence of an averment to the contrary, the complaint imports that the sale was for cash. — Brady v. Green, supra; Robbins v. Harrison, 31 Ala. 160; Loval v. Wolf, 60 South. 298; Veitch v. Atkins, 5 Ala. App. 444, 59 South. 746. The complaint does charge that the sale was to be governed by the “Bremen Cotton Exchange,” but the rules are not set up, nor does it appear from any paid of said count 3 that the cotton had already been paid for, or that it was not to be paid for in cash on delivery.
Replication A sets up a denial of any modification of the contract, except as to an extension of time, and also denies that the same was abrogated, as charged in the defendants’ pleas, and charges that the defendants did not comply with the contract as extended, in that they failed to ship the cotton within said extended time. In other words, it confesses that the time was extended, but denies that the contract was abrogated by the plaintiff, as charged in said pleas, and then charges a breach by the defendants of the contract as modified. This replication may be no more than a general one, but there was no error in refusing the motion to strike, or in overruling the demurrer to same.
Replications B and C do not traverse the pleas as to the extension of time, and do not traverse the allegation that the plaintiff’s agent notified the defendants, in February, 1911, not to ship the cotton, but set up an agreement subsequent to February; that is, in March, 1911, plaintiff demanded the cotton, and defendants agreed to ship it under the terms of the contract, ,and failed to do
The judgment of the circuit court is reversed and cause is remanded.
Reversed and remanded.