Martin v. Hill, 42 Ala. 275

Martin v. Hill

42 Ala. 275 | Ala. | 1868

BYBD, J.

1. The bill of exceptions recites that “thi& suit was to recover the first payment of two hundred dollars due on the 1st day of January, 1866.” The summons was issued on the 14th April, 1866. From the evidence, it appears that the appellant rented to the appellee a house and lot from the first day of October, 1865, to the first day of October, 1866, for the sum of eight hundred dollars, payable quarterly. It would seem, therefore, that two quarters rent was due when the suit was brought. There were five pleas, and the appellant took issue on all but the fifth, and to that he demurred, but did not specify any ground of demurrer. The record does not show that the court passed upon this demurrer, nor that any issue was taken on the plea. The judgment entry recites that the jnry were “sworn to well and truly try the issue joined.”

It appears that the appellee “put in evidence to the jury that the plaintiff, at the time of said renting, and as a part of the same contract, undertook to repair the fencing on a back lot, part of the premises rented, and that he did not repair the same until May, 1866, and in consequence of this failure so to repair, the defendant was prevented from planting the said last named lot in vegetables until May> *2781866, as aforesaid, and thereby his loss was great. That if the said last named lot had been repaired in a reasonable time after the contract was made, the benefit to defendant from raising of vegetables thereon for the time of the ■ renting, would have been worth one-half of the whole sum to be paid for the premises.”

The appellant made two objections “to this testimony as to the injury sustained as incompetent,” and specified the grounds of his objection. If any part of the testimony was admissible for any purpose, the court did not err in overruling the objections, although the evidence may not have been competent to prove the matters specified by the appellant. He should have asked appropriate instructions to the jury upon those matters, or the sufficiency of the evidence. — Brazier & Co. v. Burt, 18 Ala. 201; Cook & Scott v. Parham, 24 ib. 21; McCreary v. Turk, 29 ib. 244 ; Adams & Wife v. Adams, ib. 433; Jones v. Stearns, 28 ib. 677. We held at this term in the case of Weaver v. Shropshire, upon the authorities cited in the opinion, that a defendant, when sued on a contract, might recoup or set-off the damages he may have sustained from the breach of the contract on the part of the plaintiff. At least, such is the legal result of the decision in that case.

Hence, a part of the evidence objected to was admissible as tending to show the damages sustained by a breach of the contract, and as the objections were to the entire'evidence of the appellee, and a part of it, if not the whole, was admissible for the purposes indicated, the court properly overruled them. — 27 Ala. 514; English v. Wilson, 34 Ala. 201.

The first charge asked was correctly refused upon the doctrine herein before announced.

The natural and proximate damages resulting from the breach of contract, are those which the party injured is entitled to recover, and we know of no invariable rule by which they can be ascertained in all cases where the contract does not furnish the means of doing so. The contract shown by the evidence, did not bind or authorize the appellee to make the repairs, and what it would have cost either party to make them, is not the only measure of dam*279ages in such a case. — Fowler et al. v. Armour, 24 Ala. 194 ; Green v. Linton, 7 Por. 133, ib. 73 ; Hill v. Rishop, 2 Ala. 320; Roudy v. The Mayor, 6 ib. 328; Hunter v. Waldron, 7 ib. 793; McLane v. Miller, 12 ib. 643 ; Hatchett v. Gibson, 13 ib. 587; Jones v. Dyer, 16 ib. 221; Ward v. Reynolds, 32 Ala. 384 ; Lecroy v. Wiggins, 31 ib. 13 ; Chicago & Rock Island Railroad Co. v. Ward, 16 Ill. 522 ; Lawton v. Fitchburg Railroad Co., 8 Cushing, 230.

The court did not err in refusing to give the second charge, as it was not a correct legal proposition applicable to the evidence contained in the record. — Hughes v. Parker, 1 Por. 139; McGehee v. Powell, 8 Ala. 828; Milton v. Rowland, 11 ib. 733 ; Swift v. Fitzhurgh, 9 Por. 40.

3. As to the third and last charge, we are satisfied, upon the weight of authority, that any damage resulting from the breach of a contract to a party who is sued upon it, may be recouped, and that such damages are not to be restricted to the commencement of the suit, but to the time of trial. — Folder et al. v. Armour, supra, Fail & Miles v. McKee, 36 Ala. 68, and authorities therein cited, p. 69; Davis v. Ayres, 9 Ala. 292 ; Martin v. Everett, 11 ib. 375.

Whether any damages which may accrue after suit brought can be plead by way of set-off to the action, is not raised in this case, and we will intimate no opinion thereon ; nor, for the same reason, do we intimate any opinion upon the question, whether a defendant is entitled to a judgment for any excess of damages over' the amount sought to be recovered by the plaintiff, when such damages are allowed by way of recoupment. These questions were not so specifically presented to the court below, nor by the assignments of error, as to authorize us to decide them.

Affirmed.