65 So. 180 | Ala. | 1914
By voluntarily striking count 2 from his complaint, plaintiff unquestionably eliminated from consideration on this appeal all rulings of the trial court on the pleadings relating exclusively to that count, however erroneous they may have been.
It remains to consider only the merit of counts 1 and 3, to which the demurrers of defendants were sustained.
While count 1 alleges an agreement consisting of an offer by defendants to purchase certain real estate and a written acceptance “made by plaintiff,” it alleges that defendants “stipulated their own terms in and by said agreement,” and it wholly fails to set out said terms either in words or in substance. The demurrer pointed out this defect, and was properly sustained.—Davis v. Campbell, 3 Stew. 319; Pharr v. Bachelor, 3 Ala. 237, 244; Elmore v. Parrish, 170 Ala. 499, 54 South. 203; Ensley v. Hollingsworth, 170 Ala. 396, 54 South. 95, Ann. Cas. 1912D, 652; Armour Co. v. Vietch Co., 39
Construing the language of the'count most strongly against the pleader, as must be done on apt demurrer, we think it was defective in this particular, and one of the grounds of the demurrer so charged.
Count 3 sets out the written contract in extenso, and for breach alleges that within two days after its execution defendants wrote to plaintiff announcing their withdrawal from the agreement, and a day or two thereafter stated to him that they would not purchase the property, would not be bound by the agreement, and would not recognize any liability thereunder.
The demurrer points out the failure of this count to allege that plaintiff was himself “ready, willing, and able to comply with the terms of said contract.”
“In contracts for the sale of land,, the conveyance of the estate and the payment of the purchase money are in general concurrent acts and the promises dependent, whether a particular day be appointed for completion or not; and readiness and willingness to perform on either side is a condition precedent to liability to perform on the other.”—9 Cyc. 645; Brady v. Green, 159 Ala. 482, 48 South. 807.
Hence it is universally held, that, in an action by either party for the breach of a dependent covenant, he cannot proceed against the other without either actual or tendered performance, or a readiness and ability to perform; and an allegation to that effect must be made in the declaration, and it must be supported by proof.—McGehee v. Hill, 4 Port. 170 (5), 29 Am. Dec. 277; Jones v. Powell, 15 Ala. 824; Davis v. Adams, 18 Ala. 264, 366; Elliott v. Howison, 146 Ala. 568, 583, 40 South. 1018; Brady v. Green, 159 Ala. 482, 48 South. 807; Terrell v. Nelson, 177 Ala. 596, 58 South. 989. And
It is the theory of plaintiff, however, that the allegation of defendants’ complete repudiation of the contract, without giving plaintiff a reasonable opportunity to comply with his obligations thereunder, dispenses with the otherwise necessary allegation of plaintiff’s readiness and ability to perform.
It is doubtless true that the allegation here relied on does render unnecessary the allegation that plaintiff has performed his part of the contract or actually offered to perform it, but the authorities relied on by plaintiff’s counsel go no further than this.—Drake v. Goree, 22 Ala. 409; Bish. on Contracts, p. 1428. See, also, 39 Cyc. 1542 (C), 1562 (C) and 1987.
But Ave are aware of no authority which holds that the plaintiff need not shoAV his readiness and ability to pern form, even Avhen the defendant has repudiated the contract. On the contrary, affirmative authority is not lacking.
In an action for damages for breach of an agreement to sell and deliver Hour, Avith the allegation that the defendant refused to comply Avith his contract and refused to ship the flour, an instruction to the jury that, “there being no evidence before them that plaintiff had offered to pay, or Avas able to pay, for the flour, before bringing this suit, they must find for the defendant,” was held correct.'—Offutt v. Wells, 42 Ala. 199, 200. There Avas no objection to the complaint for omitting the allegation of ability to perform, but proof of it was held essential. See, also, Terrell v. Nelson, 177 Ala. 596, 58 South. 989.
In 39 Cyc. 1987, the rule as to complaints in actions by a vendor for breach of a contract of sale is thus stated : “If the conveyance and payment are to be dependent and concurrent acts, the complaint must ordinarily allege a tender of a deed by plaintiff; and it is not sufficient merely to allege a readiness and willingness to convey, unless other facts are alleged, such as the repudiation of the contract by defendant or refusal to accept a deed, which would render a tender unnecessary; and, even where by reason of such circumstances a tender of performance is unnecessary, it is still necessary to allege an ability and readiness on the part of the vendor to perform, or that he would have been able to perform but for some act of the purchaser.” This test is supported by the case of Booth v. Miliken, 127 App. Div. 522, 111 N. Y. Supp. 791, affirmed in 194 N. Y. 553, 87 N. E. 1115.
In view of these authorites, we are constrained to hold that the demurrer to count 3 was properly sustained; and, the only sufficient count having been voluntarily withdrawn by plaintiff, and he declining to plead further, the court properly rendered a judgment for defendants.
Affirmed.