Paletz v. Tayloe
| Decision Date | 28 February 1935 |
| Docket Number | 2 Div. 54. |
| Parties | PALETZ et al. v. TAYLOE et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Marengo County; B. F. Elmore, Judge.
Action to recover rent by W. H. Tayloe and Lilly Tayloe against M B. Paletz and others. From a judgment for plaintiffs defendants appeal. Transferred from Court of Appeals.
Affirmed.
J. Paul Jones and S.W. Compton, both of Linden, for appellants.
McKinley & McDaniel, of Linden, for appellees.
Count 3 of the complaint claimed the sum of $175 due for rents upon a storehouse and lot, described therein, pursuant to a lease contract in writing for a term named at $25 per month. The count identifies the contract, giving date, names of parties terms of rent, and monthly installments due and unpaid. There was no demurrer to such count.
It is insisted the contract was not admissible because of variance, in that the complaint imports an absolute obligation, while the contract is conditional. The contract contained certain covenants by the lessees to renovate and repair, provided for termination of the lease in case the building was destroyed by fire or the elements, postponed its operation in case there was delay in giving possession to the lessees (the house being then occupied by another tenant), with option in the lessees to cancel if possession was delayed. None of these contingencies arose. The contract offered in evidence conformed to count 3 as to all matters averred therein. The objection for variance was not well taken. The case of Kilgore v. Arant et al., 25 Ala. App. 356, 146 So. 540, does not hold to the contrary.
If proof of execution was necessary on plea of the general issue, it was fully supplied later on in the trial. True, the contract did not make out a case for plaintiffs, and proof that rents had accrued thereunder and amount thereof were required. The court had a clear discretion to reopen the case for such proof after both plaintiffs and defendants had rested on the introduction of the contract.
Defendants, by special pleas 3 and 4 claimed by way of set-off or recoupment the value of certain shelving alleged to have been put in the store building by defendants, not attached to the building, also counters, tables, and built-in clothes racks, all left in the store when vacated by defendants and appropriated by plaintiffs to their use.
Plaintiffs interposed to these pleas replication B setting up the stipulation in the lease obligating the lessees "to renovate and repair said building and property, at their own expense, in a manner to make it suitable for their business to be conducted therein."
The original judgment entry, as well as that entered on ...
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Volunteer State Life Ins. Co. v. Danley
... ... recitation of an adjudication on the demurrers to invoke our ... review. It is merely a copy of the bench notes of the trial ... judge. Paletz et al. v. Tayloe et al., 230 Ala. 131, ... 159 So. 836. We will pretermit a decision on this matter, ... however, since we are clear to the ... ...
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Jones v. Daniel
... ... It appears as simply a copy of the judge's bench notes ... and is in this form: 'July 14, 1947--Demurs (sic) to ... complaint overruled.' Paletz et al v. Tayloe et ... al, 230 Ala. 131, 159 So. 836; Life & Cas. Ins. Co ... of Tenn. v. Bryan, 33 Ala.App. 294, 33 So.2d 25; Thomas ... v ... ...
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Thomas v. White
...demurrer to other pleas sustained,' is not sufficient as a judgment upon the demurrers." And, in the more recent case of Paletz v. Tayloe, 230 Ala. 131, 159 So. 836, 837, is said: "The original judgment entry, as well as that entered on motion nunc pro tunc, merely recites 'defendants' demu......
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Life & Cas. Ins. Co. of Tenn. v. Bryan
... ... Hunt et al., 125 Ala. 512, 28 So. 488; ... Tallassee Falls Mfg. Co. v. Western Railway of ... Alabama, 128 Ala. 167, 29 So. 203; Paletz v ... Tayloe, 230 Ala. 131, 159 So. 836; Thomas v. White ... et al., 244 Ala. 128, 12 So.2d 567. Under the above ... doctrine it is our opinion ... ...