6 Div. 837.
May 21, 1936. Rehearing Denied June 25, 1936.
Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.
Stephen B. Coleman, Erle Pettus, and Erle Pettus, Jr., all of Birmingham, for appellant.
The counts of the complaint stating an action in case were not subject to demurrer. Adler v. Miller, 218 Ala. 674, 680, 120 So. 153; Wilkinson v. Moseley, 18 Ala. 288; Louisville N. R. Co. v. Robinson, 213 Ala. 522, 105 So. 874. Where the breach of a contract was tortious, special damages may be recovered according to the actual injury received. Vinson v. Southern Bell T. T. Co., 188 Ala. 292, 66 So. 100, L.R.A. 1915C, 450; Nashville, C. St. L. R. Co. v. Campbell, 212 Ala. 27, 101 So. 615; F. Becker Co. v. Murphy, 224 Ala. 655, 141 So. 630; Pullman Co. v. Meyer, 195 Ala. 397, 70 So. 763; Loy v. Reid, 11 Ala. App. 231, 65 So. 855; Browning v. Fies, 4 Ala. App. 580, 58 So. 931; Taxicab Co. v. Grant, 3 Ala. App. 393, 57 So. 141; Bixby-Theirson L. Co. v. Evans, 167 Ala. 431, 52 So. 843, 29 L.R.A.(N.S.) 194, 140 Am.St.Rep. 47; Bixby-Theisen L. Co. v. Evans, 174 Ala. 571, 57 So. 39. Where the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, it is just that damages therefor be taken into consideration and awarded. Westesen v. Olathe State Bank, 78 Colo. 217, 240 P. 689, 44 A.L.R. 1484; Becker Roofing Co. v. Pike, 230 Ala. 693, 160 So. 692; 8 R.C.L. 451; 17 C.J. 746.
Smyer, Smyer Bainbridge, of Birmingham, for appellee.
As a general rule the measure of damages for default in payment of money is the sum of money due, with interest. Sutherland on Damages (4th Ed.) §§ 76, 77, 286; Gooden v. Moses Bros., 99 Ala. 230, 13 So. 765; Sloss-Sheffield S. I. Co. v. Greek, 211 Ala. 95, 99 So. 791; Pyle v. Pizitz, 215 Ala. 398, 110 So. 822; Kennedy v. Hudson, 224 Ala. 17, 138 So. 282; Bixby-Theirson L. Co. v. Evans, 167 Ala. 431, 52 So. 843, 29 L.R.A.(N.S.) 194, 140 Am.St.Rep. 47.
The suit was against the trustee for the alleged breach of a trust agreement under which real properties were conveyed and administered and monthly disbursements of personal properties required to be made for the benefit of the cestui que trustent.
The complaint contained counts ex contractu and ex delicto as originally drawn and as amended. We will only pass upon the sustaining of demurrers to counts ex delicto of the complaint. The other questions assigned as error are believed to be best deferred for consideration upon another trial.
In Adler v. Miller, 218 Ala. 674, 120 So. 153, the rule for testing the nature of counts, whether ex contractu or ex delicto, is: If the cause of action declared in the pleading arises from a breach of promise, it is ex contractu, and if the action arises from a breach of duty growing out of the contract, it is in form ex delicto and case. Lacey v. Deaton, 228 Ala. 368, 153 So. 650; City of Mobile v. McClure, 221 Ala. 51, 127 So. 832; Brown v. Fogarty, 221 Ala. 283, 128 So. 376; W. B. Davis Son v. Ruple, 222 Ala. 52, 130 So. 772; 68 A.L.R. 1196, note.
Counts 1, 3, A and B, as amended, were held by the trial court to be ex delicto and demurrers directed thereto were sustained; counts 2 and 4, as amended, held ex contractu and demurrers directed thereto overruled.
In Mobile Life Insurance Co. v. Randall, 74 Ala. 170, Judge Stone states the distinction between actions ex contractu and ex delicto. This has been adhered to in this jurisdiction. Adler v. Miller, supra.
We find reversible error in sustaining the demurrers to the several counts in nature ex delicto. The facts are stated which show that the duty grew out of the contract and the breach thereof, and which gave rise to the damages sought to be recovered — for negligent or intentional disregard of the duties which the law implied from the averred conditions and attendant circumstances growing out of the contract relations, proximately resulting in the injury by reason of the breach of such contract duty. Brasher v. First National Bank of Birmingham (Ala.Sup.) 168 So. 42; Bentley-Beale, Inc., v. Wesson Oil Snowdrift Sales Co., 231 Ala. 562, 165 So. 830; Sovereign Camp, W.O.W. v. Feltman, 226 Ala. 390, 147 So. 396; Louisville N. R. Co. v. Robinson, 213 Ala. 522, 105 So. 874.
Ante, p. 340.
The case should be retried on the several issues we have indicated and sought to be presented by the pleading.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.