Donnelly v. House

• Decision Date: 29 April 1909
• Citation: 160 Ala. 325,49 So. 324
• Parties: DONNELLY v. HOUSE ET AL.
• Court: Alabama Supreme Court

49 So. 324

160 Ala. 325

DONNELLY v. HOUSE ET AL.

Supreme Court of Alabama

April 29, 1909

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by J. W. Donnelly against E. W. House and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Plea E is as follows: "The plaintiff made an agreement on, to wit, the 15th day of March, 1906, to fix and repair the room and to repaper the room, and put in certain gas fixtures in the house, for the rent of which, and said agreement is made upon a sufficient consideration from the defendants to plaintiff, and plaintiff broke his agreement to make such repairs to said roofs, walls, and gas fixtures, and as a proximate consequence thereof defendants were damaged in the use of the room and house in the sum of $200, which they hereby offer to set off against plaintiff's demand." And it claims judgment for the balance.

Cabaniss & Bowie, for appellant.

Allen &amp Bell, for appellees.

SIMPSON J.

This action was commenced in the justice of peace court by the appellant against the appellees for rent claimed to be due on a written contract of renting.

The first assignment of error insisted on by the appellant is to the action of the court in overruling the demurrer to plea E and it is first insisted that the ground of demurrer "that said plea is the mere conclusion of the pleader," should have been sustained. Said plea sets up an agreement, which it is alleged was made on the 15th day of March, 1906, by which the plaintiff agreed to place certain repairs on the rented premises, for a sufficient consideration from the defendants to the plaintiff, alleges the breach, and claims that the defendants were thereby damaged to the amount of $200 in the use of the house and rooms, which the defendants offer to set off. The plea sufficiently alleges the facts upon which damages are claimed, and it is not subject to said cause of demurrer.

It is next insisted that said plea is subject to the cause of demurrer, "for that said plea sounds in damages merely." "A debt or demand 'not sounding in damages merely' is one which, when the facts upon which it is based are established, the law is capable of measuring accurately by a pecuniary standard." Code 1907, § 5859; Cage & Salter v. Phillips, 38 Ala. 382. The plea is not subject to this cause of demurrer.

The matters alleged in plea E were practically the only issues raised in the...