Carbon Hill Coal Co. v. Cunningham

Decision Date26 November 1907
Citation153 Ala. 573,44 So. 1016
PartiesCARBON HILL COAL CO. v. CUNNINGHAM ET AL.
CourtAlabama Supreme Court

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Action by S. V. Cunningham and another against the Carbon Hill Coal Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Davis &amp Fite, for appellant.

R. A Cooner, for appellees.

TYSON C.J.

The complaint contained six counts. All of these counted for a recovery upon the breach of a certain written contract alleged to have been executed by defendant, except one, the sixth, which was in form the common count for work and labor performed by plaintiffs for the defendant. During the trial the court excluded the contract upon which each of the first five counts were based, and at defendant's request gave the affirmative charge for it upon each of them. These rulings render it unnecessary to consider the action of the court in overruling the demurrer interposed to these counts, and in sustaining a demurrer to certain pleas interposed to them and striking certain other pleas. If these several rulings were erroneous, they were clearly innocuous to the defendant, and nothing can be taken under the several assignments of error based upon them by it.

All the counts being eliminated, except the common count upon which there was a recovery by the plaintiffs, we need only consider upon this appeal such assignments of error as relate to the rulings of the court pertinent to the issues presented under it; and under the view we take of the case it is only necessary to dispose of those assignments based upon the action of the court in rejecting defendant's offer to prove that the work and labor performed, for which the recovery was sought, was performed under a special contract. In Snedicor v. Leachman, 10 Ala. 330, 333, it was said: "We understand the law to be that if there is proved to have been a special contract, which has not been rescinded, the plaintiff cannot resort to the common counts, though he may fail in the proof of his contract, so as to enable him to recover upon it." See, also, Anderson v. Rice, 20 Ala. 239; Worthington v. McGarry, 42 So. 988, 990.

Where there is an express contract, the plaintiff cannot resort to an implied one. An exception to this rule, however, is that he may recover on the common counts, although the evidence discloses a special agreement, when such agreement has...

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11 cases
  • McCormick v. Badham
    • United States
    • Supreme Court of Alabama
    • 23 Octubre 1919
    ......568, 56 So. 216; Maxwell v. Moore, 163 Ala. 490, 50 So. 882; Carbon Hill Coal. Co. v. Cunningham, 153 Ala. 573, 44 So. 1016;. Worthington ......
  • Baker Sand & Gravel Co. v. Rogers Plumbing & Heating Co.
    • United States
    • Supreme Court of Alabama
    • 29 Marzo 1934
    ......560, 93 So. 612;. Varner v. Hardy, 209 Ala. 575, 96 So. 860;. Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573, 44. So. 1016; Hall v. Gunter & ......
  • Nelson Weaver Mortg. Co. v. Dover Elevator Co.
    • United States
    • Supreme Court of Alabama
    • 21 Noviembre 1968
    ...did not do so, the complaint does not support the judgment. In support of this contention, the appellants cite Carbon Hill Coal Co v. Cunningham, 153 Ala. 573, 44 So. 1016; Ludden & Bates v. Watt, 18 Ala.App. 652, 94 So. 239; Foster & Creighton Co. v. Box, 259 Ala. 474, 66 So.2d 746. It mus......
  • Braswell v. Malone
    • United States
    • Supreme Court of Alabama
    • 10 Marzo 1955
    ...controlling when a contractor abandons his contract or fails to perform it without just cause. But it is said in Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573, 44 So. 1016: 'When it is shown that defendant (owner) breached the contract, and thereby prevented its full performance, the pla......
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