Lambert v. Jefferson

• Decision Date: 24 June 1948
• Docket Number: 5 Div. 451.
• Citation: 36 So.2d 594,251 Ala. 5
• Parties: LAMBERT v. JEFFERSON.
• Court: Alabama Supreme Court

36 So.2d 594

251 Ala. 5

LAMBERT v. JEFFERSON.

5 Div. 451.

Supreme Court of Alabama

June 24, 1948

Jacob A. Walker and R. C. Smith, both of Opelika, for petitioner.

Denson & Denson and L. J. Tyner, all of Opelika opposed.

FOSTER Justice.

The Court of Appeals held that the sixth plea was subject to demurrer, because it was not sufficient in respect to the damage claimed, and because 'no facts tending to show a breach were set forth.'

The complaint was in a common count for work and labor done. The sixth plea was one of recoupment, for that in respect to the contract for labor sued on plaintiff verbally agreed, as a feature of his work for defendant as sales manager, to perform the duties usual and proper in such employment and to conduct said business as sales manager in a careful skillful and diligent manner; and the plaintiff breached his contract in that he did not perform the duties usual and proper in such employment, and did not conduct said business in a careful, skillful and diligent manner, but neglected his duties and conducted said business in a careless, unskillful and dilatory manner to defendant's damage in the sum of $2127.28, which he offers to recoup, and claims judgment for the excess. In a broad way such a claim is well supported. 39 Corpus Juris 134, section 178.

It is true, as stated by the Court of Appeals, that in a plea of recoupment the claim for damages should be as certain as if it were an original action by defendant against plaintiff. But in that connection we have also stated the rule to be that if no special damages are properly claimed, the measure of damages is that applicable to general damages. It is not necessary to make special claim for general damages. The rule is clearly stated in King Land & Improvement Co. v Bowen 7 Ala.App. 462, 463, at page 480, 61 So. 22, 28, to be that 'general damages are such as naturally and necessarily flow from the wrong act; while special damages are such as naturally, but do not necessarily flow from it. The former do not have to be pleaded in order to give defendant notice that they will be proved at the trial; for they are implied by law, and he is supposed to know, and can prepare to defend as to, all damages that necessarily result from the wrong done. Special damages, however, do have to be set out and claimed in the complaint to the end that the defendant, who could not possibly in all cases anticipate them, may have proper notice of them, and thereby have opportunity to prepare to meet at the trial the proof as to them.'

In Donnell v. Jones, 13 Ala. 490, 500, 48 Am.Dec. 59, it is said that 'the declaration is good without the averment of special damages as the law implies nominal damages from the act complained of, but this does not authorize proof of special damage.' This was approved in Lewis v. Paull, 42 Ala. 136, where a claim for general damages is illustrated. The averment of special damage is not necessary to support a count against demurrer, but only necessary to support evidence of that sort of damage. Troy Laundry Mach. Co. v. Joyce, 229 Ala. 331, 157 So. 214; 25 Corpus Juris Secundum, Damages, § 131(b), page 752; Trammell v. Chambers County, 93 Ala. 388, 9 So. 815.

We do not think that plea six is subject to demurrer on account of uncertainty in the allegation as to damages claimed.

The Court of Appeals also stated that the breach of the contract was not sufficiently alleged in omitting the facts tending to show a breach.

The general rule in that connection is that no great particularity is required in describing the breach of a contract, but the essential facts constituting the obligation should be set forth in unequivocal terms, and the breach be assigned with such particularity as will apprise the defendant in what respect he has failed to perform. All that is required is that the breach complained of be substantially set forth. But general averments without giving the nature or character of the breach may not be sufficient as defendant must be informed as to how or wherein he breached the contract. 17 Corpus Juris Secundum, Contracts § 544, page 1177; Woodward Iron Co. v. Frazier, 190 Ala. 305, 67 So. 430; Hart v. Bludworth, 49 Ala. 218.

Plea six is for damages reciting the existence of a contract and the duties assumed by plaintiff to be that he would perform the duties usual and proper in such business in such employment and to conduct said business as sales manager in a careful, skillful and diligent manner. The breach of this contract is stated by using the language of the contract in making declaration of such breach by a failure 'to perform the duties usual and proper in such employment, and did not conduct said business in a careful, diligent and skillful manner.'

This plea is clearly one ex contractu for the breach of contract, and not ex delicto for the negligent performance of a contract. For the negligent performance of a contract, the count may be either ex contractu or ex delicto. Adler v. Miller, 218 Ala. 674, 120 So. 153; Davis & Son v. Ruple, 222 Ala. 52, 130 So. 772; Mobile Life Ins. Co. v. Randall, 74 Ala. 170.

We have observed the rule as to both ex contractu and ex delicto actions, that when the facts show the relation of the parties and the duty in the premises a breach may be pleaded by way of conclusion. Pure Oil Co. v. Cooper, 248 Ala. 58, 26 So.2d 249; Louisville & Nashville R. Co. v. Robinson, 213 Ala. 522, 105 So. 874; Alabama Fuel & Iron Co. v. Bush, 204 Ala. 658, 86 So. 541, and a long line of cases there cited. But a distinction is to be drawn from an allegation which declares on the negligent performance of a duty which may be alleged in such general terms, and the 'failure to perform the duties usual and proper in such employment.' The latter allegation does not apprise plaintiff of the duties thought to have been left undone. An illustration of such allegations of breach is found in Worthington

v. Davis, 208 Ala. 600, 94 So. 806, cited by the Court of Appeals, which we think supports the conclusion of the Court of Appeals as to that aspect of plea six, which alleges a failure to perform.

But the plea also alleges that plaintiff 'conducted said business in a careless, unskillful and dilatory manner.' In respect to the negligent performance of a duty, the quo modo of negligence need not be alleged. That feature of the plea in substance charges negligent performance, as a breach of the contract in a count which alleges that plaintiff agreed to 'conduct said business as sales manager in a careful, skillful and diligent manner,' to the defendant's damage sought to be recouped. There were two breaches, but each was of a separate stipulation of the contract as alleged, and therefore not duplicitous. Nave v. Berry, 22 Ala. 382; Worthington v. Davis, supra; Western Union Tel. Co. v. Barbour, 206 Ala. 129, 89 So. 299, 17 A.L.R. 103.

In the last named case, the Court was dealing with implied obligations, holding that there may be two or more obligations of a contract express or implied, set up in a single count with a single breach of each obligation: one may be alleged defectively and one properly. When so, a demurrer addressed to the count as a whole cannot be sustained. In that case, count two alleged two distinct implied obligations of a contract, with a separate allegation of the breach of each. One was the duty to deliver the message promptly. The breach alleged was but a failure to do so. The second charge was that defendant negligently failed to inform plaintiff of its inability to transmit and deliver the message said to be the breach of a separate and distinct obligation. The count was treated as though this duty was defectively stated (not its breach). But the count as a whole was held not subject to demur...