Perry & Walden v. Gallagher

• Decision Date: 26 April 1917
• Docket Number: 6 Div. 540
• Citation: 75 So. 396,200 Ala. 68
• Parties: PERRY & WALDEN v. GALLAGHER.
• Court: Alabama Supreme Court

75 So. 396

200 Ala. 68

PERRY & WALDEN v. GALLAGHER.

6 Div. 540

Supreme Court of Alabama

April 26, 1917

Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.

Action by J.L. Gallagher against Perry & Walden in assumpsit. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911. Reversed and remanded.

Count 4 is as follows:

Plaintiff claims of defendant the further sum of $32.50, for that on, to wit, December 1, 1914, defendant promised to furnish plaintiff with lumber to the value of $32.50, and that one Coleman Gann was indebted to plaintiff in the sum of $32.50, and said defendant stated to plaintiff that he was indebted to said Gann, and that they would deliver to plaintiff said lumber; and in pursuance of said agreement plaintiff discharged said Gann from said indebtedness, with the consent of said Gann, but said defendant then failed or refused to comply with said agreement, and to deliver or furnish said lumber to plaintiff.

And this relates to the same transaction as counts 1, 2, and 3.

J.M Pennington, of Jasper, for appellant.

Ray &amp Cooner, of Jasper, for appellee.

McCLELLAN J.

This action, to recover about $32, was commenced by the appellee in a justice's court; whence it was taken by appeal to the law and equity court, where a complaint containing four counts was filed. The plaintiff was awarded a judgment in the latter court. The report of the appeal will contain the fourth count, It was subject to the ground of demurrer taking the objection that the count did not show a consideration for the promise declared on and which was alleged to have been made by the defendants to the plaintiff. There is no averment that the contract entered into by the defendants included the release by the plaintiff of what Gann owed the plaintiff thus excluding recourse to principles applicable where there has been a novation. 29 Cyc. p. 1130 et seq.; Montgomery Bank Co. v. Jackson, 190 Ala. 411, 67 So. 235. As constructed, count 4 shows only a promise without consideration to pay the debt of another.

The count purporting to declare on an account should have borne the allegation that it was unpaid. All of these three counts would, it seems, have been better framed if they had followed the simple form provided in the Civil Code, at page 1195. The second ground of the demurrer put an alternative proposition one of which was...