Opinion
3 Div. 747.
March 18, 1926.
Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge.
Gibson Davis, of Birmingham, for appellant.
Count 1 was demurrable for failure to aver that the money claimed was due from defendant. Dixie Ind. Co. v. Manly, 57 So. 49, 2 Ala. App. 365; Smythe v. Dothan F. M. Co., 52 So. 398, 166 Ala. 253; Kelly v. Burke, 31 So. 512, 132 Ala. 235. Count 2 fails to aver that the sum claimed was still due and unpaid, and was subject to demurrer. Authorities supra. The motion for a new trial should have been granted. Moore v. First Nat. Bank, 36 So. 777, 139 Ala. 595.
Foster Foster, of Montgomery, for appellee.
If there was error in rulings on demurrer as to the first count, it was harmless. Sup. Ct. rule 45; Best Park Co. v. Rollins, 68 So. 417, 192 Ala. 534, Ann. Cas. 1917D, 929; 4 C. J. 1169; Jackson v. Vaughn, 86 So. 469, 204 Ala. 543; Ex parte Little Cahaba Coal Co., 105 So. 648, 213 Ala. 596. A demurrer must distinctly set out the grounds. Code 1923, § 9479. No exception being shown, the judgment on motion for new trial is not presented for review. Akin v. Chancy, 93 So. 408, 207 Ala. 523; Foster Co. v. Thompson, 82 So. 454, 203 Ala. 204; Ala. F. I. Co. v. Courson, 101 So. 638, 20 Ala. App. 313; Grace v. Old Dominion Co., 105 So. 707, 213 Ala. 550. Charge 1, given for plaintiff, was correct. Republic I. S. Co. v. Smith, 86 So. 908, 204 Ala. 607. So of charge 2. Aquilino v. B. R., L. P. Co., 77 So. 328, 201 Ala. 34; B. R., L. P. Co. v. Milbrat, 78 So. 224, 201 Ala. 368; Sou. Ry. v. Beaty, 103 So. 658, 212 Ala. 608. Defendant's requested charges were properly refused. Locke v. Humphries, 60 Ala. 117; Dunbar v. Smith, 66 Ala. 490; Thornton v. Williams, 71 Ala. 555.
Plaintiff (appellee) was unable to follow the Code form for the common count on an open account, count 1. The count as drawn was defective as specifically pointed out, and defendant's demurrer should have been sustained. Smythe v. Dothan F. M. Co., 52 So. 398, 166 Ala. 253. But the error complained of in this connection will not be allowed to work a reversal of the judgment, for the reason that the recovery must, under the evidence, be assigned to the count for work and labor done, the second count of the complaint. The second count, and indeed the whole complaint, was defective, for that it failed to conclude, as does the form of the Code, § 9531, form 10, that the sum sued for was still unpaid, and we see no reason why this averment was omitted. But the count alleged a sum due on a date prior to suit brought, disclosed a cause of action, and the demurrer failed to point out the defect now insisted upon with that distinctness required by section 9479 of the Code. As to count 2, therefore, the ruling on demurrer cannot now be held for error.
The ruling on the demurrer to count 3, the common count for money had and received to the use of plaintiff, is now of no consequence, since the general charge against that count was given by the trial court. Central of Georgia v. Hingson, 65 So. 45, 186 Ala. 40.
Defendant's argument for error in overruling its motion for a new trial is based upon an alleged deficiency in plaintiff's evidence. No exception to this ruling is shown by the bill of exceptions. The question cannot be reviewed in this state of the record. Akin v. Chancy Bros. Co., 93 So. 408, 207 Ala. 523; Grand Bay Land Co. v. Simpson, 81 So. 548, 202 Ala. 606; Powell v. Folmar, 78 So. 47, 201 Ala. 271. We do not find that these decisions have been affected by the codification in section 6088 of the Code of 1923 of the Act of September 22, 1915, p. 722, § 1. However, there was evidence to sustain plaintiff's case and sufficient to support a recovery.
The objections taken against the charges given for plaintiff, marked by us on the margin of the record, "1" and "2," are hypercritical. There was no error in giving these charges. Charge 1 rather suggestively named the amount for which plaintiff was suing, but as to that there was no dispute; the only question at issue between the parties being whether defendant was liable to plaintiff. It was not denied that, if liable at all, the amount was that named in the charge. As for charge 2, some words were omitted, but they were not necessary to the meaning and intent of the charge which could not have very well been misunderstood.
The court refused the general charge requested by defendant as to counts 1 and 2. The charge as to "1" might well have been given; the refusal of the charge as to "2" was clearly right, since, very clearly, plaintiff had evidence tending strongly to support his case. The charge as to "1" might have been given, as we have said, but there was no reversible error in refusing it, for the reason that the recovery must in any event be referred to count 2.
The charge which we have numbered 9 in the margin of the record was misleading. Defendant was building a road under contract with the state highway department. While performing a part at least of the work for which plaintiff claimed a recovery, he was not in the employment of defendant — his case was that he was employed by a subcontractor, that he was about to abandon the work because he was not being paid according to his agreement, when defendant, for whom the work was being done, promised to pay for the part already done and as well that remaining to be done if plaintiff would carry on the work to a finish, and that, in consideration of this agreement, he completed the work. On this showing, if accepted by the jury, as it well may have been, plaintiff was entitled to recover. Defendant suggests the statute of frauds; but we think it inapplicable, because the promise to pay by defendant was upon a new and valuable consideration, beneficial to the promisor, the defendant. Mason v. Hall, 30 Ala. 599; Locke v. Humphries, 60 Ala. 120; Thornton v. Williams, 71 Ala. 555; Moore v. First National Bank. 36 So. 777, 139 Ala. 595.
The charge we have marked "10" for like reasons was well refused. Moreover, the charge ignored plaintiff's evidence that defendant promised, on the consideration stated above, to pay plaintiff for his work which was done for the benefit of defendant.
Finding no reversible error, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.