Cleveland v. Towle

• Decision Date: 05 November 1924
• Docket Number: 1 Div. 535
• Citation: 106 So. 58,21 Ala.App. 161
• Parties: CLEVELAND v. TOWLE.
• Court: Alabama Court of Appeals

106 So. 58

21 Ala.App. 161

CLEVELAND v. TOWLE.

1 Div. 535

Court of Appeals of Alabama

November 5, 1924

Rehearing Denied Nov. 18, 1924

Affirmed on Mandate Nov. 3, 1925

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action by Albert S. Towle, Jr., by his next friend, Albert S. Towle Sr., against Frank Cleveland. From a judgment for plaintiff defendant appeals. Affirmed on mandate.

Certiorari granted by Supreme Court in Ex parte Towle, 106 So. 60.

Harry T. Smith & Caffey, of Mobile, for appellant.

Inge &amp Bates, of Mobile, for appellee.

SAMFORD J.

The plaintiff's action is stated in four counts. The first seeks a recovery for the breach of an agreement to employ plaintiff as a bookkeeper at $100 per month, and the other counts are the common counts claiming for an account, account stated, and for work and labor done.

Demurrer was interposed to the first count on the grounds that the complaint showed no mutuality and no consideration on the part of the plaintiff and other grounds not here necessary to mention.

The contract declared on in the first count is one for personal service, and in such a contract, like other contracts, a valuable consideration is necessary for its support. 13 Corpus Juris, 341(192) 14. In order for the count to meet the requirements in stating a cause of action, there must be allegations showing mutuality on the part of plaintiff and defendant. So far as this complaint goes, there was no obligation on the part of plaintiff to have entered into the employment of defendant, without which there was a lack of that mutuality which the law requires. The demurrer should have been sustained. McGowin Lbr. & Export Co. v. Camp Lbr. Co., 192 Ala. 35, 68 So. 263.

It is insisted, however, on the part of appellee, that this error cannot avail the appellant anything because the common counts were sufficient upon which to base the verdict and to which it will be referred. The general rule is that where nothing remains to be done under an express contract but the payment of money, a creditor may sue on the common counts; but if recovery is sought for damages on account of defendant's breach of the contract, the plaintiff must declare specifically on the contract, stating the contract and the breach under proper allegations. 13 Michie's Dig. 512, p 226. In this case there was no evidence that plaintiff had performed the labor called for by the agreement, but there was evidence of a tender and readiness to perform on the part of plaintiff which if believed by the jury entitled him to a recovery of the contract price on the common counts; hence, we must hold that the error in overruling the demurrer was without injury.

The court did not err in refusing to charge the jury, at the request of defendant, that plaintiff, being a minor, was not entitled to recover for loss of earnings on account of defendant's breach of the contract of employment. If the contract was made and the defendant breached the contract and damage was thereby sustained, the plaintiff, though an infant, could maintain the action. 31 Corpus Juris, 1087(198) 7. Contracts of infants for the performance of service are voidable merely at the election of the infant and not the other party. Langham v. State, 55 Ala. 114; Waugh v. Emerson, 79 Ala. 295; ...