Deslandes v. Scales

• Decision Date: 14 May 1914
• Docket Number: 670
• Citation: 65 So. 393,187 Ala. 25
• Parties: DESLANDES v. SCALES et al.
• Court: Alabama Supreme Court

65 So. 393

187 Ala. 25

DESLANDES v. SCALES et al.

No. 670

Supreme Court of Alabama

May 14, 1914

Appeal from City Court of Birmingham; C.C. Nesmith, Judge.

Action by J.E. Scales and others against Fannie Deslandes for breach of contract of lease. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

The exceptions to evidence sufficiently appear from the opinion. The following are the charges mentioned:

Assignment 14: "If you believe from the evidence that the defendants caused the grates and fireplaces to be put in reasonably good condition, you cannot render any damages against plaintiff on account of the grates and fireplaces."

Assignment 15: "If you believe from the evidence that the grates, fireplaces, electric lights, and plumbing were put in a reasonably good condition, you must find for defendant."

Assignment 16: "You cannot award plaintiff any damages for any failure to get boarders."

Assignment 17: "If you believe the evidence, you cannot award plaintiff any damages for any loss of boarders."

The fourteenth ground of the motion for new trial was that the court erred in not immediately stating that the jury must not consider argument of plaintiff's counsel to the effect that the furniture was moved out of the house by a constable after defendant's counsel had objected to such argument.

Allen &amp Bell, of Birmingham, for appellant.

Harsh Beddow & Fitts, of Birmingham, for appellees.

McCLELLAN J.

The action is instituted by appellees against appellant. It claims damages for breach of covenants by the landlord in a lease of a dwelling house for the year beginning October 1 1911, and ending September 30, 1912. It is averred in the complaint that appellant "agreed to do the following repairs on said house, viz.: To repair the columns and porch floor, and put fireplaces and grates, electric lights, and plumbing in reasonably good condition, and to repair a pantry in the kitchen." The breaches assigned are the failures "to put" the plumbing, the fireplaces, the grates the electric lights, "in reasonably good condition." The judgment recites that "additional demurrers" to the complaint were filed October 28, 1912. No such demurrer appears in the transcript. The only demurrer to the complaint in the transcript is that filed July 30, 1912. In the instructive briefs filed for the appellant elaborate argument and citation of authority is devoted to the discussions of two imperfections which appellant contends exist in the complaint, viz.: The omission to aver the consideration or considerations supporting the covenants alleged to have been breached; and the omission to aver the time within which the fulfillment of the covenants alleged should have been accomplished.

Code, § 5340, provides:

"No demurrer in pleading can be allowed but to matter of substance, which the party demurring specifies; and no objection can be taken or allowed which is not distinctly stated in the demurrer."

Under these requirements, this court, as is familiar, has long maintained and enforced the practice whereby a very strict observance of the rule of the statute has been consistently required. The demurrer of July 30, 1912--the only one in the transcript--does not, in any of its grounds, specify the objections urged in the briefs of appellant. The only ground that even remotely approaches the exacted specification in such pleading is the seventh ground. That ground is:

"For that it does not appear when defendant was to put in the fireplaces, grates, electric lights, and plumbing."

In pointing this ground, he departed from the complaint and the covenants therein averred, in that his ground assumed to contradict the complaint that the covenants were to install the fireplaces, grates, etc.; whereas, the covenants averred were to put those things in reasonably good condition--an allegation of assurance to repair, not to originally install.

The other assignments urged in brief for appellant touch rulings on the admission of evidence, instructions given the jury, and the argument of counsel.

The last-mentioned matter of urged error may be pronounced to be without merit on the authority of B.R., L. & P. Co. v. Gonzalez, 61 So. 85.

In enumerating the damages resulting from the breaches averred, it is alleged in the complaint:

"Water leaked from the plumbing in said house, sewage leaked from plumbing in said house, said house was rendered greatly less fit as a place of residence and as a place of occupancy for human beings, was made uncomfortable and undesirable as a residence, and plaintiffs lost many boarders whom they were boarding in said house, and lost large sums of money that they otherwise would have made, and suffered great physical and mental inconvenience, annoyance, pain, and suffering, and the defendant sold a large amount of plaintiffs' furniture, to wit, furniture of great value, to wit, of the value of $500, for a small balance of rent, to wit, $50, and same was lost to plaintiffs."

It appears from the evidence that the plaintiffs (appellees) intended, when they leased the dwelling, which was large, to conduct a boarding house, and did, upon assuming possession conduct a boarding house. That was their business. If, from any one or more of the breaches assigned, damage to the plaintiff's business resulted, manifestly they were...