Perry & Walden v. Gallagher

Apr 26, 1917
6 Div. 540.
Reporters:
, ,
Before:
McClellan
McCLELLAN, J.

[1] This action, to recover about-$32, was commenced by the appellee in a justice’s court; whence it was taken by appeal to the law and equity court, where a complaint containing ‍​‌‌​‌​‌‌‌​‌​‌​​​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌​‌​‌​‌​‌‌‌​​​‌‌‌‌‌‌‌‌‌‌‌​​​​​​‌‌​‌​‌‌​​‌‌​​​‌​​​​‌‌‌‌​​‌​‌​‌‌​​‍four counts was filed. The plaintiff was awarded a judgment in the latter court. The report of the appeal will contain the fourth count, It was subject to the ground of demurrer taking the objection that the count did not show a consideration for the promise declared on and which was alleged to have been made by the1 defendants to the ‍​‌‌​‌​‌‌‌​‌​‌​​​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌​‌​‌​‌​‌‌‌​​​‌‌‌‌‌‌‌‌‌‌‌​​​​​​‌‌​‌​‌‌​​‌‌​​​‌​​​​‌‌‌‌​​‌​‌​‌‌​​‍plaintiff. There is no averment that the contract entered into by the defendants included the release by the plaintiff of what Gann owed the plaintiff, thus excluding recourse to principles applicable where there has been a novation. 29 Cyc. p. 1130 et seq.; Montgomery Bank Co. v. Jackson, 190 Ala. 411, 67 South. 235. As constructed, count 4 shows only a promise without consideration ‍​‌‌​‌​‌‌‌​‌​‌​​​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌​‌​‌​‌​‌‌‌​​​‌‌‌‌‌‌‌‌‌‌‌​​​​​​‌‌​‌​‌‌​​‌‌​​​‌​​​​‌‌‌‌​​‌​‌​‌‌​​‍to pay the debt of another.

[2] The count purporting to declare on an account should have borne the allegation that it was unpaid. All of these three counts would, it seems, have been better framed if they had followed the simple form provided in the Civil Code, at page 1195. The second ground of the demurrer put an alternative proposition, one of which was ‍​‌‌​‌​‌‌‌​‌​‌​​​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌​‌​‌​‌​‌‌‌​​​‌‌‌‌‌‌‌‌‌‌‌​​​​​​‌‌​‌​‌‌​​‌‌​​​‌​​​​‌‌‌‌​​‌​‌​‌‌​​‍contradicted by the averments of the counts. The question argued for appellant was not in fact raised by the demurrer.

[3] There was no error in the rulings on the evidence, except in the particular that the defendants were denied the benefit of the statement in the letter written by Gann to the defendants wherein he and the defendants had had a settlement as affording ground for the contradiction of ‘the, ‍​‌‌​‌​‌‌‌​‌​‌​​​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌​‌​‌​‌​‌‌‌​​​‌‌‌‌‌‌‌‌‌‌‌​​​​​​‌‌​‌​‌‌​​‌‌​​​‌​​​​‌‌‌‌​​‌​‌​‌‌​​‍feature of his testimony wherein- he made statement to a different effect.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

- ANDERSON, C. Jv and SAYRE and GARDNER, JJ., concur.