68 So. 359 | Ala. | 1915
(1,-2) In an action for the breach -of a contract, the complaint should set out or describe all those parts of the contract which are material for the purpose of enabling the court to form a just idea of what the contract actually was, or which are necessary for the purpose of providing the jury with a criterion in the assessment of damages, with certainty. — 1 Chitty (16th Ed.) 277; Manier & Co. v. Appling, 112 Ala. 666, 20 South. 978; Sloss Co. v. Payne, 186 Ala: 341, 64 South. 617; Elmore, Quillian & Co., v. Parish Bros., 170 Ala. 499, 54 South. 203. It may be that good [pleading would require that count 2 should define the kind of car for which the plaintiff was to pay, in order to fix the price, but we may assume that it meant an ordinary railroad car, yet that count is defective for other reasons. It does not appear when the stone was "to be removed, nor that the alleged failure and refusal to permit such removal occurred at or after that time. Non constat the time for its removal may have expired before the defendant’s refusal. On the other hand, if no time for removal was fixed, the law would fix a reasonable time, but in either event the plaintiff should charge that the refusal occurred at a time when he had a right to remove the stone; that is, within the time fixed by "the contract, or within a reasonable time if no time was fixed.
(3) This count is also defective for failing to aver that the plaintiff, at the time of the alleged breach, was ready, willing, and able to perform his part of the contract. — Long v. Addix, 184 Ala. 236, 63 South. 982; Barney v. Davis, 2 Ala. App. 595, 55 South. 1023.
The trial court erred in not sustaining defendant’s demurrer to this count. ,
(4) Count 7 purports to seek a recovery in assumpsit, but bases a part of the account upon the value of' certain chattels converted by the defendant. It maybe that the plaintiff could waive- the tort and recover in assuihpsit for the value of the articles converted,, but the count seeks to recover as.for a certain amount: of grading done for the defendant, and also for the value of the chattels converted, and seeks to recover in the same count as upon two separate and distinct causes; of action.
“A count which unites several distinct causes of action is bad, notwithstanding they might be joined in-one complaint in separate and distinctive counts.”'— Southern Railway Co. v. McIntyre, 152 Ala. 223, 44 South. 624, and cases there cited.
The judgment of the city court is reversed, and the cause is remanded.
Reversed and remanded.
