Kennedy v. McDiarmid

• Decision Date: 26 November 1908
• Citation: 47 So. 792,157 Ala. 496
• Parties: KENNEDY v. MCDIARMID.
• Court: Alabama Supreme Court

47 So. 792

157 Ala. 496

KENNEDY v. MCDIARMID.

Supreme Court of Alabama

November 26, 1908

Appeal from Clay County Court; W. J. Pearce, Judge.

Action by Ed. Kennedy against Whit McDiarmid. From a judgment for defendant on demurrer to the complaint, plaintiff appeals. Affirmed.

The complaint as originally filed is as follows: "Plaintiff claims of defendant the sum of $100 damages, for that whereas, plaintiff rented to defendant certain lands for cultivation for the year 1906, plaintiff to furnish the land and defendant to furnish the labor and team to cultivate said land and crops to be divided on one-third and one-fourth between plaintiff and defendant. Plaintiff avers that defendant failed to cultivate or have cultivated the lands rented in a husbandlike manner, and not cultivating some at all, as he contracted to do. (2) Plaintiff claims of defendant the sum of $100 damages out of a breach of duty growing out of a certain contract between plaintiff and defendant, whereby plaintiff rented to defendant certain lands for cultivation by defendant for 1906, plaintiff furnishing the land to be cultivated and defendant furnishing labor and team to cultivate said land, the crops to be divided on third and fourth between plaintiff and defendant. Plaintiff avers that defendant failed to plant and cultivate said land in a husbandlike manner, to the damage of plaintiff," etc. Demurrers were interposed for a misjoinder of count, failure to set forth with sufficient definiteness the terms and conditions of the contract failure to properly describe the land, and remoteness of damages claimed. These demurrers being sustained, plaintiff amended the complaint by adding in both counts immediately after the figures "1906" where they occur therein the following words of averment: "A farm in Brownsville precinct, Clay county, known as the 'Ed. Williams old farm,' which trade was made between plaintiff and defendant about the last of November or the 1st of December 1905, the crop to be grown during the year 1906." Demurrers being sustained to the counts as amended, the following additional amendments were made by adding at the end of each count the following averments: "Plaintiff avers that defendant took charge and possession of said farm some time near the latter part of December, 1905, or the 1st of January, 1906, under said contract and kept the possession of said farm during the year 1906, and cultivated or had cultivated a portion of said land, but not in a husbandlike manner, and a large part of said land was not cultivated at all, but plaintiff avers that defendant obtained possession of said land during the year 1906, but negligently failed to have any of said land properly cultivated in a husbandlike manner, and negligently failed to have a large portion of said land cultivated at all. The original demurrers were refiled to the complaint or with additional demurrers that the allegations are too uncertain, vague, and indefinite that the quantity of cultivatable and noncultivatable land was not shown; that the damages sought are too remote," etc. Plaintiff further amended his complaint by adding count 3 as follows: "(3) Plaintiff adopts count 2 as first amended, and adds the following words of averment 'Plaintiff avers that defe...