Pike County v. Hanchey

119 Ala. 36 | Ala. | 1898

COLEMAN, J.

This suit began in a justice’s court, to recover for the hire of a county convict, which resulted in a judgment for the plaintiff. The defendant Appealed to the circuit court, where the cause was tried de novo. In the circuit court the plaintiff filed a formal complaint, consisting of four counts, some of which are in the common form for work and labor done, and others counted upon the breach of the bond executed by the defendant with sureties for the hire of the county convict, for the value of whose services the suit was instituted. The contract and bond sued upon is made exhibit “A” to the third and fourth counts of the complaint.

The defendant demurred to each count of the complaint, and the demurrer ivas sustained to the second, third and fourth counts. The several .rulings of the court sustaining the demurrer to each of these counts, are separately assigned as error.

The second count avers thát the defendant failed and refused to pay the hire and avers that such failure and refusal was a breach of the condition of the bond. This count nowhere states the condition of the bond. The court cannot determine from anything contained in the second count, -whether there has been a breach or not. The demurrer was properly sustained. — Code, page 791.

The third count “claims damages for the breach of a contract in words and figures as set out in exhibit ‘A’ hereto attached, etc.” It avers that Harper, whose name is signed to the contract as agent, was authorized by the court of county commissioners to make the contract for the hire of the convict; that the convict was regularly tried, convicted and sentenced, and in pursuance of the contract, was delivered to and worked by the defendant, “and that defendant failed to pay the hire, wherefore plaintiff sues, etc.” It is contended that this count sIioavs neither the condition of the agreement, nor a breach. The count sets out the whole of the contract, one of the provisions of A\diich is the agreement to pay the county of Pike for the hire of the convict. The averment that the defendant failed and refused to pay the hire according to the said contract, certainly shows a breach of the contract, as much so as if the count in toticlem verbis had further averred such “failure or refusal” to be a breach of the condition of the agreement. The court erred in sustaining the demurrer to the third count of the complaint.

As the case must be reversed, we will not consider the fourth count, further than to say that exhibit “A” should be made a part of said count by a more definite averment. On another trial the plaintiff can make the necessary amendment.

The minutes of the commissioners court of November 6, 1893, if offered alone, were competent evidence to go to the jury. These minutes showed the authority of the agent to make the contract. Offered in connection with the minutes of November, 1894, which were made after the termination of the term of hiring, they were irrelevant, and the two having been offered as a Av'hole, the court did not err in sustaining an objection to the eAddence.

The action Avas properly brought in the name of Pike county, not only because Pike county was the party really interested, and therefore the proper party plaintiff, under section 2594 of the Code of 1886, in the counts seeking a recoArery for the payment of money, but by the terms of the contract Pike county is made the obligee or payee, and, therefore, entitled to maintain the action to recover damages for a breach of the agreement.

The plaintiff offered in evidence the bond and contract of the defendant. To this evidence the defendant objected, and the court sustained the objection. The objection Avas general, not specifjdng any ground. We presume the court proceeded upon the proposition, that before the bond and contract could be eAddence of a valid obligation, it should appear that the commissioners court had previously “determined in what manner and upon Avhat particular works hard labor should be performed,” as provided in section 4586 of the Code of 1886.

Reversed and remanded.