Opinion
8 Div. 72.
October 7, 1930.
Appeal from Morgan County Court; W. T. Lowe, Judge.
Action by Jerry Dean and Leldon Rayburn against Acklin Kay. From a judgment for plaintiffs, defendant appeals.
Reversed and remanded.
By the complaint plaintiffs claim of the defendant the sum of $140, alleged to be due them by the defendant "for boring a well under contract by which the defendant contracted and agreed to pay plaintiffs $2.00 per foot for said well, and plaintiffs aver that they bored said well in compliance with said contract, completing the same on, to-wit, October 29th, 1925; that said well was bored to a depth of ninety-feet, and the total contract price was $190.00, due and payable on October 29th, 1925; that the defendant has paid upon the contract price the sum of, to-wit, $50.00, and the balance with interest thereon is still due and unpaid, and is hereby claimed."
The following grounds of demurrer, among others, were interposed against the complaint:
"3. The terms and conditions of the contract sued on are not stated, the kind or character of well which plaintiffs agreed to bore and the defendant agreed to pay for is not stated."
"D. The contract as pleaded is too indefinite to support a cause of action.
"E. The contract sued on is not set out nor is the substance thereof pleaded."
A. J. Harris, of Decatur, for appellant.
In pleading a contract, it must be set forth in terms or according to its legal effect. The averment that plaintiffs "bored said well in compliance with said contract" is not sufficient. Gray v. Wood, 220 Ala. 587, 127 So. 148; Moundville Lbr. Co. v. Warren, 203 Ala. 488, 83 So. 479; Patterson v. Camp, 209 Ala. 514, 96 So. 607.
J. Marvin Kelley, of Hartselle, for appellees.
The complaint is sufficient. The contract averred shows mutuality.
The suit was on contract, and the complaint consisted of but a single count.
In the opinion in the case of Moundville Lumber Co. v. Warren, 203 Ala. 488, 83 So. 479, our Supreme Court said: "In declaring upon a contract, the pleader must either set out the contract literally or state its legal effect (Davis v. Campbell, 3 Stew. 319, 321), averring the facts showing defendant's obligation, and, if on parol contract, stating the consideration (B. R. L. P. Co. v. Littleton [ 201 Ala. 141] 77 So. 565, 573)."
The complaint, here, was defective in very much the same way as that pointed out in the case of Patterson v. Camp, 209 Ala. 514, 96 So. 605. In other words, here, as there, "a count declaring on a contract alleging plaintiff did the work 'under' the contract (is) held demurrable as not averring facts showing plaintiff complied with the terms of the contract (Italics ours) so as to recover for breach, such averment not being equivalent to an allegation that plaintiff did the work as required by or in accordance with the original or altered contract."
As was said in the opinion in the case of B. R. L. P. Co. v. Littleton, supra: "A cause of action is made up of a duty and a breach of it. * * * The former must be shown by the facts alleged in the declaration. * * * And though the breach of such duty may be averred by way of a conclusion, it does not follow that the existence of the duty may be averred as a conclusion."
The appeal, here, is on the record proper, without bill of exceptions. Measured by the rules of law we have adverted to, above, grounds of demurrer 3, D, and E, interposed to the complaint, were each well taken, and should have been sustained.
For the error in overruling appellant's demurrers, as indicated, the judgment is reversed, and the cause remanded.
Reversed and remanded.