Ferlesie v. Cook
| Citation | 78 So. 915,201 Ala. 571 |
| Decision Date | 18 April 1918 |
| Docket Number | 6 Div. 742 |
| Parties | FERLESIE et al. v. COOK. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.
Action by L.E. Cook against F. Ferlesie and another on a contract. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.
W.P McCrossin and George E. Bush, both of Birmingham, for appellants.
Arthur L. Brown, of Birmingham, for appellee.
The trial court erred in not sustaining the defendants' demurrer to the complaint. Neither of the counts defines or specifies the nature and character of the breach, or what provision of the contract was breached. From aught that appears, the defendants may have failed to convey, may have failed to furnish an abstract, or may have conveyed, but did not have, a merchantable title. Moreover, the second count fails to aver a compliance, by the plaintiff, with the provisions of the contract, or to negative a breach by him before the defendants breached the same. It neither avers a performance by the plaintiff nor a readiness and willingness to do so. See form 9, p. 1194, of the Code of 1907; Long v. Addix, 184 Ala. 236, 63 So. 982.
The record does not support the appellants' second assignment of error; it shows that the demurrer to defendants' plea 1 was overruled, and not sustained, as set out in the said assignment of error.
While this case must be reversed upon the pleading, it is not amiss to state that the plea of non est factum, by the defendant Ferlesie, the mother, placed the burden of proof upon the plaintiff to prove the execution by her of the contract. The plaintiff's evidence, not only failed to establish this fact, but the defendants' evidence showed that she did not sign the contract, and the same should have been excluded, so far as it applies to her, upon her motion to exclude. The statement of the other defendant to Carter that his mother had signed the contract, not having been made in her presence, was not evidence against her that she had. It may have been admissible to contradict the witness, who testified that the mother did not sign the contract; but it was no evidence to establish the fact that she did sign same.
The trial court also erred in refusing the defendants' requested charge 5. While Carter contradicted the fact, the defendant F. Ferlesie testified that it was distinctly...
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Cloud v. Moon
...of a fact necessary to the establishment of liability or defense. Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530; Ferlise (Ferlesie) v. Cook, 201 Ala. 571, 78 So. 915; Thomas Furnance Co. v. Carroll, 204 Ala. 263, 85 So. 455; Lynn v. State, 37 Ala.App. 400, 69 So.2d 485, syl. 4; Lawson v. ......
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Randolph v. State, 8 Div. 926
...was quoted in Gholston, supra. In support thereof, Judge McElroy cites, Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530; Ferlesie v. Cook, 201 Ala. 571, 78 So. 915; Thomas Furnace Co. v. Carroll, 204 Ala. 263, 85 So. 455; Lynn v. State, 37 Ala.App. 400, 69 So.2d 485, Syl. 4; Lawson v. State......
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Perry v. Brakefield, OB-GYN
...or defendants against whom they are offered, are not admissible to prove the truth of the matter asserted therein. Ferlesie v. Cook, 201 Ala. 571, 78 So. 915 (1918). Dr. Brakefield's statement, even if otherwise an admission by him, was ultimately inadmissible as relayed to Nurse Rouse via ......
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Randolph v. State
...of a fact necessary to the establishment of liability or defense. Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530; Ferlise (Ferlesie) v. Cook, 201 Ala. 571, 78 So. 915; Thomas Furnace Co. v. Carroll, 204 Ala. 263, 85 So. 455; Lynn v. State, 37 Ala.App. 400, 69 So.2d 485, syl. 4; Lawson v. S......