Cowan v. Pruitt

• Decision Date: 08 February 1921
• Docket Number: 1 Div. 393
• Citation: 18 Ala.App. 76,89 So. 85
• Parties: COWAN v. PRUITT.
• Court: Alabama Court of Appeals

89 So. 85

18 Ala.App. 76

COWAN v. PRUITT.

1 Div. 393

Court of Appeals of Alabama

February 8, 1921

Rehearing Denied April 5, 1921

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by Ruth Cowan against H.L. Pruitt. Judgment for defendant when demurrers to several counts of the complaint were sustained, and plaintiff appeals. Reversed and remanded.

Jesse F. Hogan, of Mobile, for appellant.

R. Percy Roach, of Mobile, for appellee.

BRICKEN P.J.

This was an action by the appellant for failure upon the part of appellee to deliver a piano in pursuance to an order issued upon him by the Mobile Tribune.

The complaint originally consisted of two counts. Later counts 3 4, 5, 6, 7, and 8 were added by amendments. Demurrers were sustained to all of the counts except the second, which was the common count for accounts. The plaintiff upon the sustaining of the demurrers to the complaint suffered a nonsuit on account of such adverse rulings upon the pleadings, and assigns as error the action of the court in sustaining the demurrers to counts 4, 5, 6, 7, and 8 of the complaint. These several counts sought to recover of the defendant for a failure to deliver the piano on order made upon him by the Mobile Tribune. We have carefully examined the complaint and the demurrers assigned thereto, and we are of the opinion that there was no error in sustaining the demurrers to the complaint.

The fourth count was clearly subject to the second and third grounds of demurrer interposed thereto. Under these averments of the complaint the Mobile Tribune Company, Incorporated could not have forced or compelled the delivery of the piano. It had derived no title to the piano, and had not paid for it. Plaintiff, being an assignee, had no greater rights than her assignor.

The fifth, sixth, seventh, and eighth counts are subject to the same defects as the fourth count. The strongest construction that can be given to the several counts of the complaint is an agreement on the part of the defendant to deliver a piano to the order of the Mobile Tribune Company, and do not show as pointed out in the demurrers, that this was a valid enforceable agreement, because it is not shown that such agreement was based upon a valuable consideration.

The judgment of the circuit court is affirmed.

Affirmed.

Reversed and remanded on the authority of the case of Ex parte Ruth Cowan v. H.L. Pruitt (Supreme Court) 89...