Norton v. Allaire Woodwood & Co.

• Decision Date: 12 February 1914
• Citation: 64 So. 609,185 Ala. 344
• Court: Alabama Supreme Court
• Parties: NORTON v. ALLAIRE WOODWOOD & CO.

64 So. 609

185 Ala. 344

NORTON v. ALLAIRE WOODWOOD & CO.

Supreme Court of Alabama

February 12, 1914

Appeal from City Court of Birmingham; C.C. Nesmith, Judge.

Action by Allaire Woodwood & Company against Mrs. E.B. Norton. Judgment for plaintiff, and defendant appeals. Affirmed.

Z.T Rudolph, of Birmingham, for appellant.

Sterling A. Wood and Clement R. Wood, both of Birmingham, for appellee.

SAYRE J.

Appellant demurred to count 7 of the complaint on the ground that it failed to show a breach of the contract alleged. The meaning in short, of the contract, which is set out in the count, is that plaintiff would ship to defendant one keg of insect powder for which defendant would pay $36. After averring performance on its part, plaintiff averred that thereafter defendant did "attempt to repudiate the said agreement and refused to carry the same into force and effect, to the damage of the plaintiff in the sums aforesaid; wherefore plaintiff avers that the said sums of money (the sums claimed in the fore part of the count) with interest thereon are now due and unpaid." If it be true that defendant's default is not alleged secundum artem, still we hardly see how plaintiff could have any more effectively informed the common understanding that defendant had failed to pay the sum agreed upon. The count is good, and those cases cited by appellant (L. & N.R.R. Co. v. Williams, 113 Ala 402, 21 So. 938, and cases there cited) which hold that this court will not do the vain thing of affirming a judgment rendered upon a complaint which does not state a cause of action are without application.

Appellee's witness Hornor testified to the effect that defendant attached her signature by her own hand to the paper writing declared upon and offered in evidence. The writing, which was unattested, was properly received on this evidence of its execution. The authorities cited by appellant to this point do not appear to have any bearing upon the question raised by the exception to this evidence.

Charges given or refused, to be made the subject of review, must be shown by a bill of exceptions. The bill in this case shows no charges, and for this reason appellant's argument in reference to the court's action in refusing to her the general charge cannot be reviewed notwithstanding the charge with the court's notation of refusal upon it, is copied into the transcript. We will say, however, that the case upon the whole...