Murphy v. Farley

• Decision Date: 10 February 1900
• Citation: Murphy v. Farley, 124 Ala. 279, 27 So. 442 (Ala. 1900)
• Parties: MURPHY ET AL. v. FARLEY.
• Court: Alabama Supreme Court

27 So. 442

124 Ala. 279

MURPHY ET AL. v. FARLEY.

Supreme Court of Alabama

February 10, 1900

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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