Roundtree v. Turner

36 Ala. 555 | Ala. | 1860

STONE, J.

When this case was before us at a former term,'(30 Ala. 706.,) we declared, that the complaint was legally sufficient.' The complaint, which contains two counts, is in the same form as when we announced its sufficiency, and must be now held sufficient.

[2.] The second count is based on an award. It avers, that the arbitrators “awarded to plaintiff, on the 7th October, 1854, the one-fifth part of said crop.” This was sufficient, because it furnished the rule for ascertaining the amount to which plaintiff was entitled. Id cerium est, quod certurp. reddi potest. — Higgins v. Willes, 3 Mann. & Ry. 382; Platt v. Hall, 2 Mees. & Wels. 391; Waite v. Barry, 12 Wend. 377. But what is claimed as an award in this case, falls far short of proving the averment in the complaint. The arbitrators found but a single fact — viz., the terms of the contract between the parties. That contract was executory, and cast on each party the performance of certain duties. Mr. Turner could claim no compensation from'Mr. Boundtree, without averring a performance of his part of the agreement, or giving some valid excuse for its non-performance. The arbitrators failed to find the facts, from which the amount due could be ascertained by calculation or proof; and they failed to find any sum due, which, if- they had so found, would have supported their finding, without any recital of facts. The award did not support the second count in the complaint. — Watson on Arb. and Award, (59 Law Lib.,) 204, et seq.; Bedam v. Clerkson, 1 Ld. Raymond, 123; Marshall v. Dresser, 3 Ad. & El. (N. S.) 878; Cargey v. Aitcheson, 3 Dowl. & Ry. 433; Grier v. Grier, 1 Dal. 178; Gonzales v. Deavens, 2 Yeates, 539; Parkhurst v. Powers, 2 Root, 531; Carnochan v. Christie, 11 Wheaton, 446; Archer v. Williamson, 2 Har. & Gill, 62; Manuel v. Campbell, 3 Ark. 324; Thinne v. Rigby, Cro. Jac. 314. Several of the rulings of the , circuit court cannot be reconciled with these principles.

Beversed and remanded.