Patterson v. Camp , 209 Ala. 514 ( 1923 )

The complaint is in several counts — the common counts and declarations on contract. In count 21 the contract is set out in hæc verba.

It was no objection to counts declaring on contract that the general specifications and underwriters' rules, in conformity with which the work was to be done, were not also exhibited in that pleading. George v. Roberts, 207 Ala. 191, 92 So. 1; Eskridge v. Brown, 208 Ala. 210, 94 So. 353.

A breach is sufficiently averred in counts 19 and 21. The ground of demurrer — that "no facts are averred which show that plaintiff complied with the terms of said contract, so as to recover for breach of the contract" — should have been sustained to count 20. The averment is not the equivalent of that required — that plaintiff did the work as required by or in accordance with the original or altered contract. Non constat he did the work "under" the contract, and yet not in accordance with its terms or requirements. There was error in this ruling.

The filing of the amended counts related to the bringing of the original suit and saved the statute of limitations. The attempt in counts 19 to 21, inclusive, is not for the purpose of fixing a lien on properties. Code 1907, § 5367; Plunkett v. Dendy, 197 Ala. 262, 72 So. 525; C. of Ga. Ry. Co. v. Camp Hill Trading Co., 208 Ala. 315, 94 So. 350; Ballenger v. Ballenger, 205 Ala. 595, 88 So. 826; Crawford v. Mills,202 Ala. 62, 79 So. 456; L. N. R. Co. v. Holmes, 205 Ala. 47,87 So. 574.

Interest only is claimed in count 21, from the date where it is alleged the balance on contract is due; and it was no ground of demurrer that such date is not averred in the other counts not claiming interest, to wit, in counts 19 and 20. The due dates are covered in the common counts that were substantially in Code Form 10, § 5382 (Code 1907), and hence not subject to ground of demurrer No. 3, as to interest. In counts for work and labor done, or material averred to have been furnished during several months, interest could be computed only from the last items or the last day of the month indicated, or when due.

Counts on contract 19 to 21, inclusive, declared upon express contract to wire the house according to certain plans and specifications. In count 21 the contract is set out in hæc verba, containing the clause, "all wires to be in BX conduit and all work done according to underwriter's rules." There was no evidence that the contract was so executed; on the other hand, the uncontroverted evidence was to the effect that the wiring was not performed, constructed, or installed according to "underwriter's rules."

For the failure to give affirmative charges numbered 22, 23, and 24, requested in writing by defendant, as to counts declaring on contract, reversible error intervened.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.