McAllister-Coman Co. v. Matthews, 52 So. 416

52 So. 416 | Ala. | 1910

MAYFIELD, J.

The only errors assigned are to the overruling of demurrers to pleas 3 and 4 as last amended. We cannot review the overruling of the demurrer to plea 3 as last amended, for the reason that the plea as last amended does not appear of record. By the judgment entry it is made to appear that demurrer was sustained to the plea as it here appears of record. The judgment entry shows that the plea was subsequently amended, and that the demurrer was thereafter overruled ; hut this last amendment is not shown, nor is the plea set out as last amended. So we cannot review this last ruling on plea 3.

Plea. 4 was held bad on the former appeal of this case. — 150 Ala. 173, 43 South. 747. We then'said of this plea: “The demurrer to the fourth plea should have been sustained. Said plea, does not set out the contract, either in words or by reference, nor does it allege that the showcase was not furnished, nor that the plaintiff had failed or refused to furnish it, but only that the plaintiff failed to ship it with the jewelry.”

There was an attempt to amend this plea in accordance with the above decision; but the.attempt is a failure. It does refer to the contract of sale which is set out in one count of the complaint; but it wholly fails to show any sufficient ground for a repudiation of the contract of sale by the defendant. It merely alleges that, when “the plaintiff shipped the defendant said jewelry, it failed to furnish said showcase.” This, without more, is not sufficient to authorize a repudiation. No actual fraud, whatever, is alleged. A mere failure to deliver the showcase the very moment or day or hour the jewelry was delivered is not of itself sufficient to warrant a rescission, in the absence of a provision or stipulation to that effect. It does not appear that there was any refusal to deliver; hut it affirmatively appears that it was subsequently delivered. It was not shown to be necessary that the jewelry and the showcase should arrive on the same day, or that the showcase should preced the jewelry. The demurrer should have been sustained to this plea as amended.

A contract is made by the joint will of two parties, and can only be rescinded by the joint will of the two parties; but one party may so wrongfully repudiate the contract as to authorize the other to renounce it and refuse to be longer bound thereby: This happens when the acts and conduct of one of the parties evinces an intention to no longer be bound by the contract. Merely because a given act or course of conduct of one party to a contract is inconsistent with the contract is not sufficient; it must be inconsistent with the intention to be longer bound by it. Every breach of a contract is, of course, inconsistent with the contract; but every breach by one party does not authorize the other to renounce it in toto.

The plea, of course, did not show a rescission of the contract, nor did it allege facts which would authorize the defendant to renounce it, and hence it was insufficient, as before decided.

Reversed and remanded.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.