Ex parte Towle
Decision Date | 07 May 1925 |
Docket Number | 1 Div. 351 |
Citation | 106 So. 60,213 Ala. 129 |
Parties | Ex parte TOWLE. v. TOWLE. CLEVELAND |
Court | Alabama Supreme Court |
Certiorari to Court of Appeals.
Petition of Albert S. Towle, Jr., for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Frank Cleveland v. Albert S Towle, Jr., 106 So. 58. Writ granted; reversed and remanded.
Inge & Bates, of Mobile, for petitioner.
Harry T. Smith & Caffey, of Mobile, opposed.
Adopting the statement of the case by the Court of Appeals:
Plaintiff had judgment.
The Court of Appeals held that defendant's demurrer to the first count was erroneously overruled. The correctness of this judgment is not questioned. McGowin Lumber Co. v Camp Lumber Co., 192 Ala. 35, 68 So. 263.
The question sought to be raised by this application is whether the ruling of the trial court in favor of the first count of the complaint should be held for error without injury. On this point the Court of Appeals says:
We can only state our inability to agree with the Court of Appeals in respect of its proposition that in a case like this there can be no recovery on the common counts where the labor called for by the employment has not been performed. The law of this court is that if the plaintiff had a contract for services to be performed and was discharged without fault on his part, the fact that thereafter he held himself in readiness to perform is tantamount to full performance on his part, leaving nothing to be done on either part save payment of the stipulated wage, and entitles plaintiff to recover on the common counts. Warten Cotton Co. v. McGuire, 206 Ala. 469, 91 So. 308; Holloway v. Talbot, 70 Ala 389; Snedicor v. Leachman, 10 Ala. 330; Sprague v. Morgan, 7 Ala. 952. In Wilkinson v. Black, 80...
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