Zirkle v. Jones, 129 Ala. 444

129 Ala. 444 | Ala. | 1900

TYSON, J.

The first 'assignment of error is based upon tlie action of the court in sustaining' demurrers to tlie first and second counts of tfie complaint. Tliis assignment is not insisted upon in argument, and we will not notice it further. — 1 Brick. Dig. 102, § 285.

Amended count number 3 set out the contracts in haee verba upon which the plaintiff® relied for a recovery, averring a performance on the part of Tarlton and others, and a refusal on the part of defendant to pay the plaintiffs the sum claimed by them as due under the contracts. By the terms of the contract between plaintiff's and defendant, the defendant was to become liable to them only in the event of the completion of the contract by Tarlton and others with him. By the terms of the latter contract, Tarlton and other bound themselves to deliver a deed and also the property, to defendant, on or before the 5th day of October, 1899, free from all liens, incumbrances, taxes of any kind whatever.

Amended count 4 was a count for work and labor done by plaintiffs for-defendant.

To these two counts the defendant filed six pleas. The second was in this language: “That the only contract which defendant had with plaintiffs is shown by the third count of said complaint, and plaintiffs performed no work or labor for defendant except thereunder, and defendant avers tli-at at the time of the alleged offer to deliver said deed the property proposed to be conveyed was incumbered by a lien for State and county taxes and by a lien for city taxes which has not been discharged.”

There was no demurrer to this plea. It was treated as presenting a full and complete defense to the counts. To it the plaintiffs filed two special replications. A demurrer was sustained to each of these, and the ruling of the court in this respect is assigned as error here.

It is clear that if the payment of the taxes by Tarlton and others was a condition precedent, a non-performance of that condition by them was a breach of the contract and involved them in all the consequences of a breach, depriving them of all remedies under it, relieving the defendant from liability to perform and affording him a right of action against them. — 7 Am. & Eng. Ency. Laiv, (2d ed.), 120, 121, and notes.

It is hardly necessary to say that if Tárleton and others breached their contract in the respect pointed out, that the contract cannot be said to have been completed; and, therefore, the plaintiffs are without cause of action or complaint against the defendant. Whether the contract imposed upon Tarlton and other’s the condition precedent of paying the tases,, we are not called upon to determine. The plea of defendant above set out rvas doubtless framed and interposed as a defense upon that theory. Indeed, it 'would have been bad and subject’to demurrer if the defense invoked by it Avas based upon any other construction of the contract. By replying to it the plaintiffs admitted its legal sufficiency as a defense and cannot here question it. Having made this admission as to its sufficiency and as under no theory of the case could it have been regarded as presenting a material issue except the one pointed out above, we must treat it as presenting that defense. The replications were no answer to it, for the very obvious reason that nothing short of a strict performance of the ’condition will fulfill the obligation to pay the taxes, thereby discharging the property from the lien. — 7 Am. & Eng. Eneye. Law, supra. The plaintiffs by these replications could not test the sufficiency of the plea. A bad replication under our practice is not good enough for a bad plea, if it be conceded that the plea would, have been subject to demurrer.' The rule of the common law of visiting a demurrer to a bad replication upon the plea was. abrogated by the adoption of the statute requiring a demurrer to be allowed for matter of substance only which must be specified in it. Code, § 3303, and authorities cited thereunder.

What we have said in noAAdse contravenes the general rule that pleadings must be construed most strongly against the pleader. We are not dealing with the question of the 'sufficiency of the plea. That was admitted. But tbe question is, were the replications subject to tlxe demurrer interposed to them. It is their sufficiency we are Called upon to deal with, and the general rule does obtain and is applicable that we must construe them most strongly against the pleader. Applying this rule and construing them in connection with the plea, we are constrained to hold them bad.—Western Assurance Co. v. McGlathery, 115 Ala. 213. With the replications out, the state of the pleadings leaves the second plea, “precisely as if traverse had been taken on a matter of fact in it, and determined against the plaintiff. On demurrer to any of the pleadings which go to the action, tlxe judgment for either party is the same as it would have been on an issue in fact, joined upon the same pleading and fouixd in favor of the same party.” This being true it is utterly immaterial what may have been the ruling of the court upon replications to other pleas. If erroneous, they were harmless, for the reason that the defendant was entitled to judgment upon his second plea.—Clearwater v. Meredith, 1 Wall. 25; Brown v. Commercial Fire Ins. Co., 86 Ala. 189.

Affirmed.