Chattanooga Brewing Co. v. Smith

CourtAlabama Court of Appeals
Citation58 So. 63,3 Ala.App. 551
Decision Date28 November 1911

58 So. 63

3 Ala.App. 551



Court of Appeals of Alabama

November 28, 1911

Rehearing Denied Feb. 8, 1912.

Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Fannie W. Smith against the Chattanooga Brewing Company to recover for use and occupation of a storehouse and for rent. Judgment for plaintiff, and the defendant appeals, and assigns as error the rulings of the court on the pleadings and the evidence. The plaintiff also filed a cross-assignment of error as to the denial by the court of her right to recover attorney's fees. Affirmed on direct appeal, and reversed and remanded on cross-appeal.

The allegations of the complaint sufficiently appear from the opinion, as do the grounds of demurrer thereto.

The pleas to counts 3 and 8 are as follows: (1) "The right of recovery under said count is in the Shindler Saloon Company, a corporation, to which the remainder of a term in the premises described in the complaint, commencing on the 1st day of October, 1905, and ending on the 30th day of September, 1910, which has been granted to one Charles E. Shindler, had on the 6th day of December, 1905, been assigned, and the beneficial interest of the said Shindler Saloon Company has not been assigned to the plaintiff." (2) "Right of recovery under said count is in Charles E. Shindler, to whom a term of five years, beginning on the 1st day of October, 1905, and ending on the 30th day of September, 1910, has been granted by the plaintiff, and the beneficial interest of the said Shindler in the rents accruing for the use of said premises has not been assigned to the plaintiff."

The pleas to counts 9 and 10 were: (1) "That the alleged indorsement was obnoxious to the statute of frauds." (2) "Because it is a promise to answer for the debt, default, or miscarriage of another, and, although in writing, does not express the consideration upon which the promise is based." (3) "Because the same was not signed by any agent of this defendant authorized in writing to sign the same." (4) "The right of recovery in this case is in the outstanding termor, the Shindler Saloon Company, the beneficial interest of which has never been assigned to the plaintiff." (5) Same as 2 to pleas 3 and 8. (6) "Said lease has never been assigned to this defendant by the termor." (7) "This defendant quitted the possession of the premises on, to wit, the last day of December, 1907."

A. Latady, for appellant.

[3 Ala.App. 555] Sam Will John, for appellee.


The following is a summary of the allegations of count 9 of the complaint, as amended: [3 Ala.App. 556] On January 17, 1907, the plaintiff was the owner of the reversion in and to a described storehouse in the city of Birmingham, which was then occupied by the Shindler Saloon Company, as tenant thereof under the plaintiff, under a lease contract for the term of five years from October 1, 1905, to September 30, 1910. The defendant obtained possession of the leased premises from plaintiff's tenant, and, on the date first mentioned, represented to the plaintiff that it had bought out said tenant, and requested the plaintiff to accept the defendant as her tenant for the leased premises for the unexpired term of the lease, and to indorse on the written contract of lease [58 So. 65] held by the plaintiff her written consent to the transfer of the leased premises to the defendant. The plaintiff agreed to this proposition of the defendant if the latter would assume to pay plaintiff the rent reserved in and by the lease contract of $300 per month, and evidence this assumption of the rent to fall due thereafter by signing its name on the back of the 44 monthly rent notes then held by the plaintiff, which defendant then and there did; and in consideration thereof, and at the same time and place and as a part of the transaction, the plaintiff made and signed the following indorsement on the lease contract: "I hereby consent to the transfer of the lease to the Chattanooga Brewing Co., they being bound by all the provisions and obligations of this lease so transferred, this 18th day of Jan., 1907." And the defendant accepted this transfer of the lease as evidenced by its indorsement of the rent notes, and by using and occupying the leased premises thereunder from that time, and by paying the rent according to the terms of the lease for the succeeding 11 months, but failed to pay the installment of rent which was evidenced by the note which fell due on February 1, 1908. The plaintiff claimed the amount evidenced by that rent [3 Ala.App. 557] note, with interest thereon, and a reasonable attorney's fee under a provision on that subject contained in the note. Count 10 of the complaint, as amended, sets out the same state of facts, except that it seeks recovery on a similar note which fell due on March 1, 1908. The defendant demurred to each of these counts of the complaint upon a number of grounds, and assigns as error the action of the court in overruling these demurrers. What will be said in reference to that ruling is applicable to each of the two counts.

There is an assumption on the part of the defendant in the grounds of demurrer assigned, and in the argument of counsel made in support of them, that the plaintiff's right to recover on either of those counts must rest upon what is alleged to have occurred between the defendant and the tenant, who surrendered possession to it, and much stress is laid upon the claim that the averments do not show that the effect of the transaction between the tenant and the defendant was to impose upon the latter, in favor of the plaintiff, the obligations which the rental contract imposed upon the tenant. To indulge such an assumption, it is necessary to ignore material features of the state of facts set out. It is patent from the plaintiff's averments that her claim upon the defendant may be rested, not alone upon the transaction with the tenant who had been...

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