Mountain Terrace Land Co. v. Brewer & Jones

CourtSupreme Court of Alabama
Writing for the CourtMcCLELLAN, J.
Citation51 So. 559,165 Ala. 242
PartiesMOUNTAIN TERRACE LAND CO. v. BREWER & JONES.
Decision Date20 January 1910

51 So. 559

165 Ala. 242

MOUNTAIN TERRACE LAND CO.
v.
BREWER & JONES.

Supreme Court of Alabama

January 20, 1910


Appeal from Circuit Court, Jefferson County; A. O. Lane, Judge.

Action by Brewer & Jones against the Mountain Terrace Land Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Tillman, Bradley & Morrow and L. C. Leadbeater, for appellant.

Frank S. White & Sons, for appellees.

McCLELLAN, J.

Action against the owner by contractors engaged to grade streets and lay cement sidewalks and gutters and also sanitary sewers in pursuit of a plan to improve a plat of land designed to be, or that was, divided into lots and sold for residential purposes. The complaint, after amendment, consisted of counts 2, 3, 4, and 5 as amended. The first three numbered are the common counts, on an account, on an account stated, and for work and labor done. The last, 5, as amended, complains of a breach of a written contract as that existed after a written alteration of it by mutual agreement. The contract, after alteration, is set out in hæc verba, and two breaches of it are alleged. The second breach is predicated upon the averred failure or refusal to pay for "extra work moving waste, as per engineer's stakes. * * *" It is urged in brief that the breach alleged, as quoted, was not within the covenants of the contract declared on, and is hence unassignable as ground of action. As well as lay minds may interpret this contract, [51 So. 560.] more or less technical as it is, we are unable to find in it any provision dealing with the matter averred as the second breach thereof. However, the demurrer fails to designate which of the two breaches was without the covenants. The court did not err in overruling it in this particular. Count 5, as last amended, is not objectionable.

The general issue and payment were pleaded to all of the counts. To counts 2 and 4 these defenses were specially interposed, numbered 5 to 11, inclusive: Abandonment of the undertaking before completion; nonacceptance of the work as complete performance of the contract; no pecuniary benefit, as the result of the work done, in excess of what was paid plaintiffs by defendant; and recoupment of the damages suffered in alleged enumerated breaches of the contract by the plaintiffs. Demurrers to these pleas were overruled, and there are, of course, no assignments in respect to these rulings. To these pleas, except that asserting voluntary abandonment...

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5 practice notes
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...it without objection. (Gwinnup v. Shies, 161 Ind. 500; Hahl v. Deutsch, 94 S.W. 443; Halleck v. Bresnahen, 3 Wyo. 73; Land Co. v. Brewer, 51 So. 559; Marchland v. Perrin, 124 N.W. 1112; Church v. Cement Co., 66 Md. 598.) The finding that the sidewalk had not been condemned by the city engin......
  • Nordin Const. Co. v. City of Nome, Nos. 1290
    • United States
    • Supreme Court of Alaska (US)
    • October 1, 1971
    ...Josey Oil Co., 26 F.2d 442 (8th Cir. 1928); Poynter v. United States, 41 Ct.Cl. 443 (1906); Mountain Terrace Land Co. v. Brewer & Jones, 165 Ala. 242, 51 So. 559 (1910); Chico Well Drilling Co. v. Givens, 206 Cal. 468, 274 P. 966 (1929); Cooper v. City of Derby, 83 Conn. 40, 75 A. 140 (1910......
  • Poole v. William Penn Fire Ins. Co., 6 Div. 852
    • United States
    • Supreme Court of Alabama
    • November 3, 1955
    ...the cases of Cassimus Bros. v. Scottish Union & Nat. Ins. Co., 135 Ala. 256, 33 So. 163, and Mountain Terrace Land Co. v. Brewer & Jones, 165 Ala. 242, 51 So. 559, inasmuch as the insurer's denial (nonpayment) is the active and necessary fact underlying the [264 Ala. 66] (2) When by its own......
  • Town of Clanton v. Chilton County, 5 Div. 771
    • United States
    • Supreme Court of Alabama
    • December 16, 1920
    ...of a promise by the municipality to pay therefor. Aarnes v. Windham, 137 Ala. 513, 34 So. 816; Mountain Terrace Land Co. v. Brewer, 165 Ala. 242, 245, 51 So. 559. The mere use of the street in its improved state by the residents of the town would not, of course, justify a finding of an acce......
  • Request a trial to view additional results
5 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...it without objection. (Gwinnup v. Shies, 161 Ind. 500; Hahl v. Deutsch, 94 S.W. 443; Halleck v. Bresnahen, 3 Wyo. 73; Land Co. v. Brewer, 51 So. 559; Marchland v. Perrin, 124 N.W. 1112; Church v. Cement Co., 66 Md. 598.) The finding that the sidewalk had not been condemned by the city engin......
  • Nordin Const. Co. v. City of Nome, Nos. 1290
    • United States
    • Supreme Court of Alaska (US)
    • October 1, 1971
    ...Josey Oil Co., 26 F.2d 442 (8th Cir. 1928); Poynter v. United States, 41 Ct.Cl. 443 (1906); Mountain Terrace Land Co. v. Brewer & Jones, 165 Ala. 242, 51 So. 559 (1910); Chico Well Drilling Co. v. Givens, 206 Cal. 468, 274 P. 966 (1929); Cooper v. City of Derby, 83 Conn. 40, 75 A. 140 (1910......
  • Poole v. William Penn Fire Ins. Co., 6 Div. 852
    • United States
    • Supreme Court of Alabama
    • November 3, 1955
    ...the cases of Cassimus Bros. v. Scottish Union & Nat. Ins. Co., 135 Ala. 256, 33 So. 163, and Mountain Terrace Land Co. v. Brewer & Jones, 165 Ala. 242, 51 So. 559, inasmuch as the insurer's denial (nonpayment) is the active and necessary fact underlying the [264 Ala. 66] (2) When by its own......
  • Town of Clanton v. Chilton County, 5 Div. 771
    • United States
    • Supreme Court of Alabama
    • December 16, 1920
    ...of a promise by the municipality to pay therefor. Aarnes v. Windham, 137 Ala. 513, 34 So. 816; Mountain Terrace Land Co. v. Brewer, 165 Ala. 242, 245, 51 So. 559. The mere use of the street in its improved state by the residents of the town would not, of course, justify a finding of an acce......
  • Request a trial to view additional results

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