Duffey v. Southern Mfg. Co.
| Citation | 92 So. 545,207 Ala. 369 |
| Decision Date | 27 April 1922 |
| Docket Number | 7 Div. 283. |
| Parties | DUFFEY v. SOUTHERN MFG. CO. |
| Court | Supreme Court of Alabama |
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Action by J. S. Duffey for damages for breach of contract. Judgment for the defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Affirmed.
E. O. McCord & Son, of Gadsden, for appellant.
Hood & Murphree, of Gadsden, for appellee.
It may be that the allegations of count 1 in respect of the circumstances which interfered with plaintiff's performance of the contract between the parties-defendant's wrong in ordering plaintiff to cease his efforts to perform the contract and threatening to prosecute plaintiff for trespass if he went upon the land where the contract was to be performed-relieved plaintiff of the necessity of alleging that he was ready, able and willing to go on with the contract. The court so held, and appellant is not in a position to complain. But the other counts are not saved by any such consideration. They allege breaches of the contract by defendant, that is, they allege (counts 2 and 3) that defendant failed to pay according to agreement, or (count 4) that defendant ordered plaintiff to cease cutting logs till further notice and failed to notify him to begin again to cut. But, for all that, plaintiff was not ready or able to proceed with the work called for by the contract. A party seeking to recover as for the breach of a contract containing mutual and dependent covenants or stipulations must aver and prove that he was able, ready, and willing to perform, as well as that defendant failed to perform on his part. Moss v. King, 186 Ala. 475, 65 So. 180; 3 Mich. Dig. p. 387, § 236. Reading these counts most strongly against the pleader, the demurrers were properly sustained.
Affirmed.
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... ... willing to perform, as well as that defendant failed to ... perform on his part." Duffey v. Southern Mfg. Co ... (Ala. Sup.) 92 So. 545; Moss v. King, 186 Ala ... 475, 65 So. 180; ... ...
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...for his services, appellee must first perform those services, and this performance by appellee must be alleged. Duffey v. Southern Mfg. Company, 207 Ala. 369, 92 So. 545. In the case at bar there was no allegation of performance by appellee or that appellee stood ready, willing and able to ......
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... ... 729 ... Counts 1, 2, 3, and 4 were free from demurrers assigned ... thereto. Duffey v. Sou. Mfg. Co., 207 Ala. 369, 92 ... There ... was no error in declining to admit in ... ...
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...did not comply with their part of the contract, and did not offer to do so in the manner provided in the contract. Duffey v. Southern Mfg. Co., 207 Ala. 369, 92 So. 545. But there is evidence that on the same day the contract was made plaintiffs offered to deliver to defendant a check on th......