Woodward Iron Co. v. Frazier, 67 So. 430

Woodward Iron Co. v. Frazier

67 So. 430 | Ala. | 1914

ANDERSON, O. J.—

(1) While no great particularity is required as to describing the breach of the contract, the essential facts constituting the breach should be set forth in unequivocal terms, and the breach should be assigned with such certainty and particularity as will apprise the defendant in what particular he has failed to perform. All that is required is that the breach complained of be substantially set forth and substantially proved. — 2 Oyc. 728. While great particularity is not required, yet the general averment of a breach, without giving the nature or character of the breach, will not suffice, as the defendant must be informed as to how or wherein he breached the contract. — Hart v. Buldworth, 49 Ala. 218. Indeed, Code forms 8 and 9 contemplate and provide that the breach complained of should be set out.

(2) Count B of the complaint was subject to the defendant’s demurrer, which should have been sustained by the trial court, as it does not aver how or in what manner the defendant breached the contract. It does aver, after charging a breach generally, that the defendant notified plaintiff not to ship any more logs. This is not an averment that the breach consisted of the notification; but, if it could be so construed, it falls short of jcharging a breach thereby, as the contract authorized the defendant to so notify the plaintiff. It may be true that the notification not to ship could apply only to shipments after the expiration of 60 days,, but the complain*308ant does not pnt the defendant in default as to any logs or timbers within 60 days after said- notification.

The case of Norton v. Woodwood, 185 Ala. 344, 64 South. 609, is. not in conflict with this holding. There the demurrer seems to have taken the point that no breach at all was charged, and not that the nature or character of the breach was not charged; and the opinion in response to said demurrer stated that a breach was charged, and demonstrated that such was the case. There is nothing in the opinion to indicate that the charge of a general breach would be sufficient as against an apt ground of demurrer.

The judgment of the city court is reversed, and the cause is remanded.

Reversed and remanded.

Mayfield, Somerville, and Gardner, JJ., concur.