Daniel v. Hughes, 6 Div. 362

CourtSupreme Court of Alabama
Writing for the CourtANDERSON, C.J.
Citation72 So. 23,196 Ala. 368
Docket Number6 Div. 362
Decision Date01 June 1916

72 So. 23

196 Ala. 368


6 Div. 362

Supreme Court of Alabama

June 1, 1916

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by William H. Daniel against R.J. Hughes in assumpsit. Judgment for defendant and plaintiff appeals. Affirmed.

The amended count A is as follows:

Plaintiff claims of defendant $1,500 damages for the breach of an agreement entered into by him heretofore, to wit December 17, 1910, by which defendant promised in consideration of the settlement of the controversy between plaintiff and defendant to pay plaintiff $900 thereafter, to wit, on December 19, 1910, in settlement of said controversy and which offer plaintiff then and there accepted. Defendant breached said agreement in this, to wit, defendant refused and failed to pay said amount

Count B is the same as count A, except that it alleges the controversy as follows:

Plaintiff and defendant had a controversy in reference to plaintiff's claim against defendant for the sale of or the procuring of a purchaser for defendant's land by plaintiff, and plaintiff and defendant agreed to settle such controversy, defendant there agreeing to meet plaintiff in Birmingham on the Monday next following the said agreement and then and there pay plaintiff $900 in settlement of said controversy, and plaintiff on his part then agreed to accept said sum in settlement of said controversy, and to be at said place at said time to receive said sum, his presence there on that occasion, and defendant's absence, and plaintiff's willingness, ability, and readiness to accept said sum since that time.

Harsh, Harsh & Harsh, of Birmingham, for appellant.

Arthur L. Brown and F.D. Nabers, both of Birmingham, for appellee.


Practically every question presented on this appeal was settled adversely to appellant's contention upon former appeal (187 Ala. 41, 65 So. 518), with perhaps the exception as to the plaintiff's right to recover under counts A and B, brought in the case by amendment at the last trial, and which were not considered upon the former appeal; the question being merely alluded to in a general way. These amended counts A and B, proceed upon the theory of a promise by the defendant to pay a fixed sum, in settlement of a dispute of controversy between the plaintiff and defendant, but neither of said counts aver that the defendant was due the plaintiff anything upon the matter or transaction out...

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6 cases
  • Ex parte Southern Cotton Oil Co., 3 Div. 578.
    • United States
    • Supreme Court of Alabama
    • June 30, 1922
    ...Jur. 527, § 12; Hand Lbr. Co. v. Hall, 147 Ala.. 561, 41 So. 78; W. Ry. of Ala. v. Foshee, 183 Ala. 182, 62 So. 500; Daniel v. Hughes, 196 Ala. 368, 72 So. 23; Ernst v. Hollis, 86 Ala. 511, 6 So. 85. As said by the Court of Appeals of New York: "If a debt or claim be disputed *** at the tim......
  • Lauderdale County Co-op v. Lansdell, 8 Div. 794
    • United States
    • Supreme Court of Alabama
    • September 15, 1955
    ...Pleading. The theory of appellant's argument is largely based on what was said in respect to the question presented in Daniel v. Hughes, 196 Ala. 368, 72 So. 23, 24. In that case it was shown to be settled that [263 Ala. 562] the existence of a mere controversy will not suffice to support a......
  • Moran v. Copeman, 6189
    • United States
    • United States State Supreme Court of Idaho
    • July 17, 1935
    ...proven under a general denial when the agreement is not in writing. (Sec. 28-103, I. C. A.; 31 Cyc., Pleading, p. 693; Daniel v. Hughes, 196 Ala. 368, 72 So. 23; 13 Cor. Jur., Contracts, sec. 885, p. 741; Alden v. Carpenter, 7 Colo. 87, 1 P. 904.) Whitla & Knudson and Kenneth K. Branson, fo......
  • Singer Sewing Mach. Co. v. Teasley, 3 Div. 221
    • United States
    • Supreme Court of Alabama
    • June 8, 1916
    ...given in evidence any matters going to show that the plaintiff never had any cause of action. 2 Greenleaf, Ev. § 135; Daniel v. Hughes, 72 So. 23; Ivey Coal Co. v. Long, 139 Ala. 535, 36 So. 722; Shannon v. McElroy, 3 Ala.App. 519, 57 So. 118. However, the general issue was not pleaded, and......
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