Brown v. O'Byrne

• Decision Date: 20 June 1907
• Citation: 45 So. 129,153 Ala. 621
• Parties: BROWN v. O'BYRNE.
• Court: Alabama Supreme Court

45 So. 129

153 Ala. 621

BROWN v. O'BYRNE.

Supreme Court of Alabama

June 20, 1907

Rehearing Denied Dec. 19, 1907.

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by W. A. Brown against T. W. O'Byrne. From a judgment for defendant, plaintiff appeals. Affirmed.

The complaint is in the following language: "Plaintiff claims of the defendant the sum of $200, for this: That heretofore, on, to wit, the 1st day of February, 1904 defendant signed an instrument in writing, which said instrument was also signed by plaintiff, in which said instrument it was agreed that the sum of $60 per month should be paid to the plaintiff for a certain two-story brick house in Pratt City, Ala., on First avenue, between Third and Fourth streets, as rent for said building, which was to be occupied by McDaniel & Bowers for a saloon from the 1st day of February, 1904, to the 31st day of December, 1904. And plaintiff avers that the rents for the months of November and December, 1904, to wit, $120, with interest, have never been paid, and that the same are now past due, and that there are no offsets or counterclaims against the same. [ Here follow the stipulation to pay attorney's fees, and allegations that $80 was a reasonable fee, and an allegation of waiver of exemption.] Count 2: Plaintiff claims of the defendant the sum of $200 under and by virtue of the terms of a certain written instrument bearing date, to wit, February 1, 1904 whereby plaintiff leased to McDaniel & Bowers a certain two-story brick house in Pratt City, Ala., on First avenue between Third and Fourth streets, to be used and occupied by said McDaniel & Bowers as a saloon from the 1st day of February, 1904, to the 31st day of December. 1904, at a monthly rental of $60 per month. [ Here follows an averment of rent due same as in count 1; also an averment to pay attorney's fees and of a waiver of exemption.] And plaintiff avers that the payment of said rent and the performance of all other terms and conditions of said lease was guaranteed by the defendant T. W. O'Byrne, and that the said O'Byrne, by signing said lease or instrument in writing, did guarantee the payment of said rents." The third count was added by way of amendment, setting out the lease contract in so many words, with the other averments as contained in counts 1 and 2. The fourth count is the same as the third count, with the additional allegation that the defendant executed said agreement for a valuable consideration as a surety to the said McDaniel & Bowers. The fifth count is the same as the third, with the additional allegation that the defendant executed said contract as a surety for the said McDaniel & Bowers. The sixth count is the same as the third, with the additional averment that the defendant executed said contract by signing his name thereto and agreed to guarantee the performance of the covenants therein on the part of said McDaniel & Bowers. The seventh count is...