Futvoye v. Chuites

• Decision Date: 21 January 1932
• Docket Number: 3 Div. 968.
• Citation: 140 So. 432,224 Ala. 458
• Parties: FUTVOYE ET AL. v. CHUITES ET AL.
• Court: Alabama Supreme Court

140 So. 432

224 Ala. 458

FUTVOYE ET AL. v. CHUITES ET AL.

3 Div. 968.

Supreme Court of Alabama

January 21, 1932

Rehearing Denied March 31, 1932.

Appeal from Circuit Court, Escambia County; F. W. Hare, Judge.

Action of special assumpsit by J. H. Chuites and A. J. Ward against W. C. Futvoye and M. L. Paterson and the Futvoye-Paterson Company, a partnership. From a judgment for plaintiffs defendants appeal.

Affirmed.

Stevens & Heidelberg, of Hattisburg, Miss., Leon G. Brooks, of Brewton, and Jones & Jones, of Evergreen, for appellants.

Harry T. Smith & Caffey, of Mobile, for appellees.

BROWN J.

Special assumpsit by appellees against appellants claiming damages for the breach of a contract entered into by the parties on the 28th day of March, 1929, in which the plaintiffs undertook and engaged to cut, haul, and deliver "on the ramp or in the pond" at the defendants' mill, all the timber located on two specified tracts of land in Conecuh county, at the rate of not less than 20,000 to 30,000 feet of logs per day at a stipulated price of $6 per thousand log measure, the plaintiffs to furnish the necessary equipment for cutting and delivering the logs at the mill.

The trial resulted in a verdict and judgment for the plaintiffs from which defendants have jointly appealed and jointly assigned errors.

The defendants Paterson and the Futvoye-Paterson Company joined in a demurrer to the complaint and the defendant Futvoye filed a separate demurrer thereto, all of which were overruled. The first three assignments of error are predicated on overruling the defendants' demurrer to the complaint.

The appellees insist that the overruling of the demurrer of Paterson and the Futvoye-Paterson Company is no concern of Futvoye, and vice versa, that the right of Paterson and Futvoye-Paterson Company was not impinged by the ruling on the demurrer of the other defendant, and hence appellants can take nothing by these assignments.

It has been the long-settled rule that a joint assignment of errors is unavailing to reverse, unless the ruling complained of is prejudicial to all joining in the assignment. Cleveland &amp Wife v. Alba, 155 Ala. 468, 46 So. 757; Home Guano Co. et al v. State ex rel. Pike, 193 Ala. 548, 69 So. 419; Shelby Iron Co. et al. v. Morrow, 209 Ala. 116, 95 So. 370.

The defendants' plea 5 alleges nothing more than that defendants complied with the stipulation in the contract to furnish to the plaintiffs "all necessary rails and spikes for the laying of two and three-fourths miles of tram road and four logging cars," and have paid plaintiffs for the logs cut and delivered.

Neither of the counts of the complaint claims damages for failure to furnish such equipment, nor do they claim any part of the stipulated price for logs cut and delivered. The plea, which is one of confession and avoidance, does not undertake to answer the plaintiffs' allegation that defendants "stopped and prevented" the plaintiffs from fully performing the contract, the gravamen of each of the counts. 6 R. C. L. 1020, § 381. The plea was therefore bad, and the demurrer was sustained without error.

The appellants' treatment of assignments of error 5 and 6 is not sufficient, under the repeated rulings here, to invite consideration and treatment of these assignments. As to assignment 5, they say: "The court should have sustained defendants' demurrer to plaintiffs' replication No. 2, as the matters set up therein were mere conclusions of the pleader, and no facts are averred on which to base such conclusions." The same treatment is accorded assignment 6. Louisville & Nashville R. Co. v. Morgan, Adm'r, 114 Ala. 449, 22 So. 20; Williams v. Spragins, Buck & Co., 102 Ala. 424, 15 So. 247; Ward v. Hood, 124 Ala. 574, 27 So. 245; McLendon v. Stough, 218 Ala. 445, 118 So. 647; Howell v. Moon, 217 Ala. 421, 116 So. 518.

The defendants' demurrer to replication 6 was sustained, and therefore the insistence that the court erred in overruling the demurrer to said replication is without merit.

The appellants' contention in support of assignments 8, 9, 10, 11, and 12, is: "The Court erred in sustaining plaintiffs' demurrers to said rejoinders, as said matters and facts set up therein were a denial in detail of the matters set up in plaintiffs' replications, and was a complete defense against plaintiffs' allegations in their replications Nos. 2, 3 and 5."

Evidence in negation or denial of the allegations of the plaintiffs' replications was admissible under the defendants' general rejoinder taking issue on the replications; therefore, if error intervened in these rulings, it was without injury. Sample v. Tennessee Valley Bank, 200 Ala. 578, 76 So. 936; Neill v. Central Nat. Bank, 201 Ala. 297, 78 So. 73.

The appellants' contention that they were entitled to the affirmative charge, because of a variance in...