Nunnally Co. v. Bromberg & Co.

• Decision Date: 12 January 1928
• Docket Number: 6 Div. 776
• Citation: 115 So. 230,217 Ala. 180
• Parties: NUNNALLY CO. v. BROMBERG & CO.
• Court: Alabama Supreme Court

115 So. 230

217 Ala. 180

NUNNALLY CO. v. BROMBERG & CO.

6 Div. 776

Supreme Court of Alabama

January 12, 1928

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for breach of contract by Bromberg & Co., a partnership against the Nunnally Company. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Alex C Birch, of Mobile, and Drennen & Burns, of Birmingham, for appellant.

London, Yancey & Brower, of Birmingham, for appellee.

BROWN J.

This action is by appellee against the appellant, and on the trial the plaintiff prevailed. The case was presented, on the merits, under the complaint as amended, consisting of five counts, the first being one of the common counts for money due on account, and the others for breach of contract, and defendant's plea of the general issue. The defendant filed a number of special pleas to which demurrers were sustained.

The assignments of error, of which there are two hundred and seventy four, are predicated on the rulings of the court on the demurrers to the complaint, the demurrers to the special pleas, the rejection and admission of evidence, exception to the oral charge, the giving and refusal of special charges, and the refusal of the defendant's motion for a new trial.

The appellee strenuously insists that these assignments of error should be treated as waived because of the violation of rules of practice 10 and 12 of this court, prescribing the form and manner of the preparation of briefs by appellants. We have given this insistence due consideration, and while the original brief filed by appellant does not strictly conform to the rule, it presents the controlling questions in the case so that they may be easily grasped, and was supplemented by oral argument and supplemental brief, with the statement of circumstances and difficulties confronting appellant's counsel in the preparation of the original brief. Courts are created to the end that justice may be administered, and their continued existence can be justified only to this end. While these rules of practice have for their purpose the orderly presentation of cases and to the expeditious disposal of public business, and should be respected and complied with by the bar, we must not lose sight of the fact that justice is best administered by disposing of controversies between litigants on their merits. We are satisfied that there has been no willful or intentional violation of the rules of practice, and are of the opinion that the circumstances justify a condonation of the technical violation of the rules, and for these reasons we are of opinion that appellee's contention should not be sustained.

Counts 2 and 3 of the complaint as amended aver, in substance, that the plaintiff on the 8th day of August, 1924, leased from the defendant "premises known as No. 218 North Twentieth street, in the city of Birmingham, Ala., for a period of time beginning on the 1st day of September, 1924, and extending through the last day of September, 1926," for a rental of $900 per month, payable monthly, the defendant holding the property described under lease from the owners, said lease from the owners being referred to in the lease between the plaintiff and defendant and made a part thereof, and providing that the plaintiff should assume and discharge all the terms of the lease between the defendant and the owners, except the payment of the stipulated rents which were to be paid by the defendant to the owner, and in turn the agreed rents between the plaintiff and defendant were to be paid to defendant. The only substantial difference in the averments of the counts is that in the second, fourth, and fifth counts it does not appear that plaintiff's lease covered by the remainder of the term held by the defendant under its lease from the owner, or that said original lease did not cover other property not covered by plaintiff's lease; while the third count sets out both leases, in haec verba, and by comparison of the two leases it appears that both leases related to property described as "218 North Twentieth street," and the lease between the plaintiff and the defendant covers what remained of the defendant's term.

The alleged breach in the second count is thus stated:

"And plaintiff further avers that they have complied with each and all the terms and provisions of said lease, have paid said rent promptly when due and on, to wit, the 1st day of September, 1924, entered into possession of all of said premises, that is the first, second, and third floors of No. 218 North Twentieth street, and all of the premises held by the defendant herein under its said lease, except the front portion of the second floor of said premises, which the defendant herein failed to put the plaintiff in possession of, the said defendant having heretofore leased and rented said premises to a tenant who was then and has been continually and is now in possession thereof, and who has paid rent to the defendant herein for the use of said premises as in said lease provided of, to wit, $85 per month."

The breach as alleged in the third count is that:

When plaintiffs "were put into possession of said building known as 218 North Twentieth street, that is all of the ground floor, all of the third floor, and the rear portion of the second floor, the said defendant failed and refused to put them into possession of the front portion of the second floor, that the east portion, which was at the time they took possession of the balance of said premises and still is in possession of the third person, who is occupying the same, including the stairway leading thereto, as a beauty parlor, under a lease from this defendant which does not expire until, to wit, the last day of September, 1926.

"And plaintiff further avers that the said tenant occupying the east portion of said second floor has been and is now paying rent to the said defendant for said portion of said premises at the rate of $85 per month, which defendant has received and kept and retained.

"And plaintiff further avers that they have made demand upon said defendant to put them in possession of all of said premises, including the stairway leading from the sidewalk on Twentieth street to the second floor and east portion of said second floor now occupied by the beauty parlor, and said defendant has failed and refused so to do," etc.

Construing the quoted averments, as to the breach of the contract in connection with the other averments describing the premises covered by the alleged lease, most strongly against the pleader, as must be done on demurrer, it does not appear with certainty to a common intent, as the rules of good pleading require, that the portion of the building in the possession of the defendant's other tenant was a part of the premises "known as No. 218 North Twentieth street," covered by the lease held by the plaintiff. Non constat the premises so occupied by defendant's other tenant may have been known by a number other than 218 North Twentieth street. "Facts essential to a cause of action, and of which courts do not take judicial notice, must be stated with that certainty that the court, on an admission of the facts stated, may say that a cause of action in favor of the party complaining exists, or, as it is expressed in the books, 'with certainty to a common intent.' " Miles v. City of Montgomery, 17 Ala.App. 15, 81 So. 351; Woodward Iron Co. v. Marbut, 183 Ala. 313, 62 So. 804; Southern Ry. Co. v. Hanby, 183 Ala. 255, 62 So. 871. This defect was pointed out by the twentieth, twenty-first, twenty-second and twenty-third grounds of demurrer, and the court erred in overruling the demurrers to these counts.

Count 4 adopts the averments of count 2 without other or more specific averments of a breach of the contract, and this count was subject to like objection.

Count 5 "adopts all of count 4 down to and including the following words, where they appear in said count together: 'Attached hereto and marked Exhibit A is the lease between the defendant herein and the owners of said property,' and adds thereto the following:

"And plaintiffs aver that they have complied with each and all of the terms and provisions of said lease, and have paid the rent promptly when and as it became due thereunder, and that the defendant has failed to put the plaintiffs into possession of the whole of said leased premises, viz., the east end of the second floor of said building and the space occupied by the stairway on the north side of said premises, although the plaintiffs have made demand upon the defendant to put them in possession of the whole of said premises," etc.

There is no such averment in count 4 or in count 2, adopted by count 4, as that "attached hereto and marked Exhibit A is the lease between the defendant herein and the owners of said property." Nor does count 2 or four aver that "the east end of the second floor of said building and the space occupied by the stairway on the north side of said premises" constitute a part of No. 218 North Twentieth street.

Therefore, leaving out of view the uncertainty arising from the attempted adoption of counts 2 and 4 as a part of this count, when the averments as to the breach of the contract are considered in connection with the antecedent averments of the counts adopted, it is subject to like objection as the other counts.

The points taken by the demurrers to the several counts of the complaint were not waived by the subsequent amendment of the complaint by merely striking out some elements of special damages claimed, and a failure to refile the demurrers. Southern Ry. Co. v. Hanby, 183 Ala. 255, 62 So. 871; B.R.L. & P. Co. v Fox, 174 Ala. 657, 56 So. 1013.

The third count of the complaint is not subject to the objection...