Barney Coal Co. v. Davis

• Decision Date: 06 June 1911
• Citation: 55 So. 1023,1 Ala.App. 595
• Parties: BARNEY COAL CO. v. DAVIS.
• Court: Alabama Court of Appeals

55 So. 1023

1 Ala.App. 595

BARNEY COAL CO. v. DAVIS.

Court of Appeals of Alabama

June 6, 1911

Appeal from Circuit Court, Walker County; J. J. Ray, Judge.

Action by N.W. Davis against the Barney Coal Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

L. D. Gray, for appellant.

J. D Acuff and R. A. Cooner, for appellee.

WALKER P.J.

The original complaint in this case alleged that plaintiff entered into a contract with defendant to dig a slope or entry and an aircourse in defendant's mine, and undertook to show a breach of the contract by the defendant by its refusal to let plaintiff proceed further with the work whereby plaintiff was deprived of the opportunity of earning profits which, it was alleged, he could have realized if he had been permitted to continue the work under the contract. The demurrer to the complaint suggested a deficiency in it in that it failed to allege that, at the time the defendant refused to let plaintiff proceed further with the work, he was able, willing, and ready to carry out and perform his part of the contract.

It hardly is necessary to have recourse to the rule for construing a pleading most strongly against the pleader to read the averment of the complaint in this case as to the plaintiff's readiness and willingness to carry out his part of the contract sued on as showing no more than that at some time since the work was stopped by the defendant there has been such readiness and willingness on the part of the plaintiff. That averment could be sustained by evidence showing no more than that, at some time subsequent to the date of defendant's refusal to let plaintiff proceed further with the work, and before the suit was brought, the plaintiff became ready and willing to carry out his part of the contract, though at the time the work was stopped he was not ready or able to proceed further with it. It was not a breach of the contract by the defendant to stop the work, if at the time this was done the plaintiff was not ready or able to proceed further with the work called for by the contract. In failing to show that such was the case, the complaint failed to show a breach by the defendant of the contract sued on.

A party, seeking to recover on the breach of a contract containing mutual and dependent covenants or stipulations must aver and prove his own offer and readiness and ability to perform, and that the other party has...