Newton v. Brook
Decision Date | 28 June 1902 |
Citation | 32 So. 722,134 Ala. 269 |
Parties | NEWTON ET AL. v. BROOK. |
Court | Alabama Supreme Court |
Appeal from circuit court, Jefferson county; A. A. Coleman, Judge.
Action by Nannie S. Brook against W. M. Newton and others. From a judgment for plaintiff, defendants appeal. Reversed.
The complaint was as follows: "The plaintiff claims of the defendant twenty-five hundred dollars damages for that on or before the 16th day of February, 1900, the defendants were engaged in the undertaking business in Birmingham, Alabama and as such were holding themselves out for the preparation of bodies for burial and shipment; that on said 16th day of February, 1900, Benjamin F. Brook, who was the husband of the plaintiff, departed this life in said city, and the defendants were informed that plaintiff desired to ship the remains of said Benjamin F. Brooks to Dunlap, Georgia, for interment, over the Southern Railway, upon the train which was to leave Birmingham at or about 6 a. m., February 17 1900, and the plaintiff engaged the defendants to prepare the remains of said Benjamin F. Brook for burial and for shipment over said Southern Railway on said train, which was to leave Birmingham at or about 6 o'clock, as above stated, on the morning of February 17, 1900, it also being made known to the defendants that preparations had been made for the interment of said remains at Dunlap, Georgia, at 10 a. m., February 18 1900; and the plaintiff avers that on said morning of February 17, 1900, she went to the Union Passenger Station at Birmingham, Alabama, for the purpose of boarding the train to accompany the remains of her deceased husband to Dunlap Georgia, when it was found that the body had not reached the station, and the plaintiff procured a few minutes delay in the departure of said train, and sent to the defendants' establishment to hurry up the remains, when it was discovered that the defendants had made no preparation for the shipment of deceased's remains at the time specified; and plaintiff avers that she was unable to have said remains shipped at the time specified, and said remains could not be shipped until the next train, which was at 4:45 p. m., February 17, 1900, and in consequence of said delay in the shipment of said remains the interment of said remains had to be postponed, and the plaintiff was put to great inconvenience by being delayed at Union Point, Ga., from 2 o'clock a. m., February 18, 1900, where she was compelled to wait without any fire, and while waiting there she suffered from cold and inclement weather; and the plaintiff avers that it was the duty of the defendants to have said remains prepared and placed at the Union Depot at Birmingham, Alabama, for shipment at or about 6 a. m., February 17, 1900, and by reason of their failure to do so the plaintiff suffered great mental agony and distress, and was subjected to great inconvenience and physical pain, as hereinabove stated, and was put to five dollars additional expense in and about said burial,--all to her damage as aforesaid; hence this suit." The defendants demurred to the complaint upon the following grounds: This demurrer was overruled. Under the opinion on the present appeal it is unnecessary to set out any of the other facts of the case. There were verdict and judgment for the plaintiff, assessing her damages at $750. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.
W. H. Denson, for appellants.
Lane & White, for appellee.
Counsel agree that the complaint is in case, and not in assumpsit; that its gravamen is for a breach of duty growing out of a contract. It counts, as we will show when we consider its averments, not upon a misfeasance or malfeasance of the defendants, but a nonfeasance. The contract attempted to be alleged as an inducement out of which the supposed duty arose is shown by the evidence to have been oral. Independent of the evidence, however, and looking alone to the averments of the complaint, applying the rule of construing pleading most strongly against the pleader, we are constrained to hold that the contract as there shown was an unwritten one, and imports no consideration.
Section 1800, Code; Maury v. Olive, 2 Stew. 472; Phillips v. Scoggins, 1 Stew. & P. 30; 4 Enc. Pl....
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...... revocation or modification of an executory contract is. required to be presented by special plea, as was sought to be. done by defendants. Newton v. Brooks, 134 Ala. 269,. 32 So. 722; Sanders v. Williams, 163 Ala. 454, 50. So. 893; Code 1907, § 5331; 7 Mayfield's Dig. p. 718. See. analogy ......