Birmingham News Co. v. Fitzgerald, 6 Div. 829.

• Decision Date: 05 March 1931
• Docket Number: 6 Div. 829.
• Citation: Birmingham News Co. v. Fitzgerald, 222 Ala. 386, 133 So. 31 (Ala. 1931)
• Parties: BIRMINGHAM NEWS CO. v. FITZGERALD.
• Court: Alabama Supreme Court

133 So. 31

222 Ala. 386

BIRMINGHAM NEWS CO. v. FITZGERALD.

6 Div. 829.

Supreme Court of Alabama

March 5, 1931

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action on common counts by T. P. Fitzgerald against the Birmingham News Company.From a judgment for plaintiff, defendant appeals.Transferred from the Court of Appeals.

Reversed and remanded.

R. B Evins, of Birmingham, for appellant.

Wilkinson Burton & Wilkinson, of Birmingham, for appellee.

GARDNER J.

Plaintiff entered into a written contract with defendant company bearing date October 20, 1928, as carrier for its newspaper on any route assigned by defendant, and deposited $250 as required by the eighth paragraph thereof to guarantee its faithful performance.The route was known as No. 28, and plaintiff operated under the contract for about three weeks when he rescinded the same for alleged breach on defendant's part, and brought suit to recover the above-noted deposit.

Under the contract plaintiff was to purchase the papers of defendant and pay for the same each Wednesday.He paid for those delivered the first week, but not the remainder of the time, leaving a balance due of $207.26.There was judgment for plaintiff for the full amount sued for, from which defendant prosecutes this appeal.

Plaintiff stated his case upon the common counts, save that for money had and received.

It is insisted the only appropriate form of action on common counts was for money had and received, or else on a special count setting out the facts, citing 2 R. C. L.p. 788.

While we agree that of the common counts money had and received was the more appropriate, yet we find no occasion here to consider or determine whether or not any one of the other counts relied upon might suffice and therefore pretermit the question, and pass to a consideration of the cause upon the merits.

A preliminary question, however, is presented by appellee, who briefs the case upon the sole point that no question of merit or substance may be here considered for that the appeal is from the original judgment which was more than six months before the execution of the appeal bond, and the bill of exceptions not presented within ninety days after the said judgment, citing McMillon v. Skelton,208 Ala. 69395 So. 148.

But it appears that following the original judgment a motion for new trial was duly filed and regularly continued from time to time, and the bill of exceptions duly presented and signed within ninety days following the judgment denying said motion.The argument of appellee overlooks the further fact that the security for costs of appeal recites that the appeal is also from the judgment overruling the motion for a new trial as well as on the original judgment."Presentation of the bill within 90 days after the granting or refusing of a motion for a new trial is sufficient to preserve for review the rulings of the trial court on the trial of the original cause, as well as the ruling of the court on the motion for a new trial."Tucker v. Houston,216 Ala. 43, 112 So. 360, 362.Appellee's insistence, therefore, is without merit.

Coming to the substance of the case, it clearly appears that plaintiff could not maintain this suit for the recovery of said deposited sum under the terms of the contract, and he has therefore treated the same as rescinded for a breach on defendant's part.He complains a list of subscribers on the route was not furnished.Defendant's evidence tends to show that the preceding carrier on this route did not leave such a list with it, and that this was so explained to plaintiff at the time or just before the execution of the contract.Plaintiff denied such explanation, and this was a disputed fact.But we view that question as here immaterial, for a careful reading of the contract does not disclose a duty on defendant's part to furnish such list, and no provision to that effect is pointed out by appellee.

The next insistence for a breach is the refusal or failure of defendant to designate the route or its boundaries.As plaintiff was contracting as carrier for one of the defendant's newspaper routes, which under the contract was subject to the control of defendant, we are of the opinion a refusal or failure to give plaintiff a route would be such a breach of the contract which would authorize its rescission by plaintiff.The important question, therefore, is: Was there such a breach on defendant's part as to justify plaintiff's rescission of the contract?In McAllister-Coman Co. v. Matthews et al.,167 Ala. 361, 52 So. 416, 417, 140 Am. St. Rep. 43, this court speaking of the right of rescission for breach of the contract used the following language:

"A contract is made by the joint will of two parties, and can only be rescinded by the joint will of the two parties; but one party may so wrongfully repudiate the contract as to authorize the other to renounce it and refuse to be longer bound thereby.This happens when the acts and conduct of one of the parties evinces an intention to no longer be bound by the contract.Merely because a given act or course of conduct of one party to a contract is

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