Appeal
from circuit court, Mobile county; William S. Anderson
Judge.
Action
by Mary A. Farley against Kate Murphy and another. From a
judgment for plaintiff, defendants appeal. Reversed.
The
complaint contained two counts. The notes, as described in
the complaint, were executed on September 23, 1898, to James
K. Glennon & Co., agents, and payable on February 1, 1899
and March 1, 1899, respectively, and were for the rent of a
dwelling in the city of Mobile.
To the
complaint, the defendants pleaded as follows: "The
defendants severally and separately for answer to the
complaint plead: (1) The general issue. (2) That the
consideration for which the said two notes sued upon were
given has failed. (3) And for further plea each defendant
pleads that the said notes sued upon were given for the
monthly rent for two months' rent of a certain house on
the south side of Government street between Royal and St
Emanuel streets in the city of Mobile, No. 111 Government
street; leased and demised by the plaintiff to the defendant
Kate Murphy for use and occupation as a dwelling for the term
of one year from November 1, 1899; that her co-defendant said
Joseph B. Webster, ws mere surety for the payment of said
rent notes; that at the time of and prior to the making of
said contract of renting, and as an inducement for the
defendant Kate Murphy to rent said house from plaintiff, she
the said plaintiff, promised and agreed with said Kate Murphy
that she would put said house in good condition and would
repair the roof of said house, which was then in a very leaky
condition, so as it would not leak; that relying upon said
plaintiff's said promises to repair said house and stop
the leaks, defendant Kate Murphy rented said house, and she
together with her said co-defendant as her surety, merely,
executed the said rent notes sued on, and said defendant Kate
Murphy entered into possession of said house for the term
aforesaid, and furnished the same with good household
furniture, beds, bedding, mattresses, carpets, and mattings,
and fitted up the rooms in said house in good condition of
use of lodgers to whom the defendant Kate Murphy would let
the same for hire, and notwithstanding defendant Kate Murphy
after the making of said notes often notified and requested
plaintiff to repair the roof of said house, which plaintiff
repeatedly promised to do, yet, nevertheless, said plaintiff
failed to repair said roof and said roof continued to leak
every time a rain would fall, and the water came through said
roof in large quantities and wet, injured, damaged and
destroyed this defendant's said household furniture,
beds, bedding, mattresses, carpets and mattings, and caused
her lodgers to leave the house, whereby this defendant
sustained great damage, to wit, one hundred dollars, which
the defendant Kate Murphy hereby offers to recoup or set off
against the plaintiff's said demand."
The
plaintiff moved to strike these pleas from the file, upon the
ground that they were pleaded to the complaint as a whole and
not to each count of the complaint separately. This motion
was sustained and the defendants duly excepted. The
defendants then filed the following additional pleas:
"(4)
They aver that the allegations of the complaint, and each
count thereof, are untrue.
"(5)
And for further plea to said complaint, and to each count
thereof, they separately and severally say actio non,
because they say that the notes sued on were given by the
defendant Kate Murphy as principal, and signed by the
defendant J. B. Webster as her surety merely, for the rent
for two months of a certain building in the city of Mobile,
Alabama, to wit, No. 111 Government street, which said
premises were rented by the plaintiff to the said Kate
Murphy for the term of one year from the 1st day of
November, 1898, to the 31st day of October, 1899. And
defendants aver that at the time of giving said notes sued
on, and prior thereto, the plaintiff agreed with said
defendant Kate Murphy that if she, said defendant, would
take said premises for said year that she, said plaintiff,
would put said premises in good condition are repair the
roof thereof so that it would not leak. That relying upon
the said agreement of the plaintiff as aforesaid, the
defendants signed said rent notes and said defendant Kate
Murphy went into the possession of said premises on
November 1, 1898, and defendants further aver that
plaintiff, although often requested to do so by said Kate
Murphy, failed to comply with her said agreement to put
said premises in good condition, and repair the roof of the
house so that it would not leak, and said defendant Kate
Murphy was by reason of the failure of plaintiff to comply
with her said agreement, and of the bad and untenantable
condition of the premises and of the leakly condition of
the roof of said house, forced to quit and abandon the
occupancy of said premises before the expiration of said
year, wherefore defendants say that the consideration for
which said notes were given has failed.
"(6)
And for further plea to each count of the complaint
defendants separately and severally say actio non, because
they say that the said notes sued upon were given for the
rent for two months of certain premises in the city of
Mobile, Alabama, to wit, No. 111, Government street, rented
by the defendant Kate Murphy from the plaintiff for one
year from the 1st day of November, 1898, to the 31st day of
October, 1899, and which said notes were signed by the
defendant J. B. Webster as surety merely, and defendants
aver that prior to the renting of said premises, and at the
time thereof, and of giving of said notes sued on, the said
plaintiff, as an inducement to the defendant Kate Murphy to
rent from her said premises for said year, agreed and
promised to put the said house in good condition and repair
the roof thereof, which was then in a very leaky and bad
condition, so that it would not leak; that, relying upon
the said promise and agreement of the plaintiff made as
aforesaid, defendant signed said notes, and defendant Kate
Murphy went into possession of the said premises and
furnished the same with good household furniture, beds,
bedding, mattresses, sheets, pillows, carpets, matting and
curtains, and fitted up the rooms in said house so that
they would be nice and comfortable for a dwelling and
sleeping apartment; that defendant Kate Murphy rented said
premises for a dwelling for herself and her family, and,
with the knowledge and consent of the plaintiff, for the
further purpose of using the spare rooms in the house for
furnishing sleeping and lodging apartments to others for
hire so as to assist her in paying the rent for said
premises; that said defendant Kate Murphy obtained lodgers
for the spare bedrooms, who had agreed to occupy the same
and pay her for the use thereof; that, after entering into
the possession of said premises as aforesaid, the defendant
Kate Murphy repeatedly notified plaintiff of the bad
condition of the walls of said house and leaky condition of
the roof, and repeatedly requested her to have the same
repaired as she, plaintiff, had promised and agreed to do,
but notwithstanding all this, the plaintiff failed and
refused to comply with her said promise and agreement to
put said house in good condition and to repair the roof of
said house so as to keep it from leaking, and the roof of
said house continued to leak every time a rain would fall,
and the water would come through said roof in large
quantities and would wet the plastering and cause that to
fall off, and the said rain water, did wet, injure and
damage defendant Kate Murphy's household furniture,
beds, bedding, sheets, mattresses, pillows, carpets,
mattings, curtains and clothing, and caused her said
lodgers to lave the house and take sleeping apartments
elsewhere, and the defendant Kate Murphy was, by reason of
the bad condition of said house and the leaky roof thereof,
forced to abandon and quit said house and hunt for another
house for herself and family to live in after the renting
season was over with, and after all dwelling houses in that
neighborhood suitable for defendant Kate Murphy's wants
and purposes had been rented and were occupied. Whereby and
by reason whereof the said defendant Kate Murphy was
greatly damaged, to wit, in the sum of over one hundred
dollars, and more than the amount of the said two notes
sued upon, and said defendant Kate Murphy hereby offers to
recoup and set off her said damages so sustained by her
against the said claim and demand of the plaintiff."
The
plaintiff moved to strike the fifth and sixth pleas from the
file, upon the ground that they were wholly irrelevant. This
motion was granted and the defendants duly excepted.
Whereupon the defendants filed the following additional
pleas:
"(7)
That at the time the suit was begun, the plaintiff was
indebted to the defendant Kate Murphy in the sum of one
hundred dollars by unliquidated demand, resulting from the
breach of plaintiff's agreement to repair the house and
rented premises and put the same in good condition, and
repair the roof of said house so as to stop it from
leaking, which plaintiff agreed to do as part of the
contract of renting, upon which she sued, and which she
failed and refused to do, in consequence whereof said house
continued to leak and the plastering in said house broke
and fell and the water and plastering fell upon defendant
Kate Murphy's furniture, carpets, matting, shades, beds
and bedding, and damaged the same to the amount of one
hundred dollars, which she offers to set off against
plaintiff's demand.
"(8)
That in consideration of the giving of said notes sued on,
the plaintiff agreed to repair the
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