Russell v. Bush

• Decision Date: 10 February 1916
• Docket Number: 1 Div. 894
• Citation: 196 Ala. 309,71 So. 397
• Parties: RUSSELL v. BUSH.
• Court: Alabama Supreme Court

71 So. 397

196 Ala. 309

RUSSELL v. BUSH.

1 Div. 894

Supreme Court of Alabama

February 10, 1916

Rehearing Denied March 30, 1916

Appeal from Circuit Court, Mobile County; Norvelle R. Leigh, Special Judge.

Action by Albert P. Bush against Julia F. Russell. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See also, 180 Ala. 590, 61 So. 373.

Harry T. Smith & Caffey and Gregory L. Smith, all of Mobile, for appellant.

Stevens McCorvey & McLeod, of Mobile, for appellee.

THOMAS J.

On the former appeal the law of this case was stated (Bush v Russell, 180 Ala. 590, 61 So. 373), and defendant's pleas 5 and A were held insufficient.

At the last trial the same matter of defense was stated as follows:

"A. The plaintiff's said cause of action as sued upon in the complaint is based upon the written contract entered into by and between the plaintiff and the defendant which was fully described in the third count of the plaintiff's complaint and to which reference is now made, and a part of the consideration for the promise which was sued upon was a promise on the part of the plaintiff to assist the defendant in her efforts to sell to the United States government the property on the northwest corner of St. Joseph and St. Michael streets, and it was one of the implied stipulations of said contract that the plaintiff in rendering such assistance would not resort to such unlawful methods as would render said sale voidable at the election of the United States government; but the defendant avers that, instead of complying with said conditions of said contract, the plaintiff resorted to lobbying in order to bring personal influence to bear upon the officers of the United States government in making such purchase in such manner as to render such contract voidable at the election of the United States government."

The point is well taken by demurrer that the allegation, in this plea, that plaintiff's acts in making said sale were such as to render said contract voidable at the election of the United States government, was in effect a mere legal conclusion, and was not "a succinct statement of the facts relied on," as required by section 5330 of the Code. The authorities on this point were collected by Mr. Justice Somerville in Phoenix Ins. Co. v. Moog, 78 Ala. 284, 301, 56 Am.Rep. 31, to which may be added Tennessee, etc., Co. v. Herndon, 100 Ala. 451, 456, 14 So. 287; Kolsky v. Enslen, 103 Ala. 97, 100, 15 So. 558; Johnson v. Ry. Co., 104 Ala. 241, 16 So. 75, 53 Am.St.Rep. 39; Lawton v. Ricketts, 104 Ala. 430, 436, 16 So. 59; St. Louis, etc., Co. v. Phillips, 165 Ala. 504, 51 So. 638; Mobile Elec. Co. v. Sanges, 169 Ala. 341, 351, 53 So. 176, Ann.Cas 1912B, 461.

Without a statement of the facts relied on to defeat plaintiff's suit, how could the plaintiff know what the real defense was? The plea fails to disclose what act or acts of the plaintiff rendered the contract voidable at the election of the government. It cannot be said that the allegation, that "plaintiff resorted to lobbying in order to bring personal influences to bear upon the officers of the United States government," was sufficiently specific to point out the officers so sought to be influenced, or to amount to an averment that an officer of the United States government having the authority at the time to determine the site of the post office in Mobile was influenced by an improper act of the plaintiff to locate the post office on defendant's lot. It would have been impossible for the plaintiff to prepare to meet such a defense. The defendant, by her plea, declined to give this specific information relied upon, preferring rather to state her conclusion that the contract of sale was voidable at the instance of the United States government, because of the existence of facts, known to her.

It is fundamental that, if a plea is directed to the whole complaint, it must be a complete answer to every separate count thereof; if pleaded to less than the whole complaint, it must be a complete answer to the count or counts to which it purports to reply. Failing in this, it is subject to demurrer; for a plea must go as far as it professes to go. 1 Chitty, Pl. 476; Arch.Civ.Pl. 168, 173; Gould's Pl. 159, c. 4, § 6; Id. c. 6, §§ 98-9; Stephen's Pl. (Tyler) pp. 215, 216; Heard's Civ.Pl. 161; Adams v. McMillan, Ex'r, 7 Port. 73; Deshler v. Hodges, 3 Ala. 509; Standifer v. White, 9 Ala. 527; Mills v. Stewart, 12 Ala. 90; White v. Yarbrough, 16 Ala. 109; Tomkies v. Reynolds, 17 Ala. 109; Wilkinson v. Moseley, 30 Ala. 562; Galbreath v. Cole et al., 61 Ala. 141; Foster v. Napier, 73 Ala. 595; Werth v. M.L. & I. Co., 89 Ala. 374, 7 So. 198; Smith v. Dick, 95 Ala. 311, 10 So. 845; First Nat. Bank of B'ham v. First Nat. Bank of Newport, 116 Ala. 520, 22 So. 976; Snedecor v. Pope, 143 Ala. 275, 39 So. 318.

The complaint contains four counts. The first is on account; the second is for work and labor done; the third is a special count upon the contract therein set forth at length, in which the defendant conditionally agreed to pay the plaintiff for service to be rendered in assisting her to sell certain of her properties to the United States government, and the performance of the service by plaintiff, and the happening of the contingency upon which the agreement to pay the $30,000 was based, are alleged; and the fourth is a special count upon the same contract, but alleging more in detail the things done by appellee in performing his promise to assist appellant in her efforts to sell to the United States certain property which she owned. Among other things, it is alleged in this count that, after appellee has succeeded in having the United States to select and agree to purchase said property upon the condition that the title be found to be satisfactory, the officials of the United States government in charge of the matter decided that defendant's title was defective; that it was then agreed by all the parties at interest that the United States should condemn the property as a site for the post office building; and that in the condemnation proceedings the value of the property should be fixed at the amount which the United States had agreed to pay therefor and which appellant had agreed to accept therefor. It is further alleged that condemnation proceedings were instituted and prosecuted to a final decree condemning the property without objection on the part of the defendant, the value being fixed at the amount for which she had agreed to sell, which amount was paid by the United States, to her, in pursuance of said condemnation proceedings; and that appellant then conveyed the said property to the United States pursuant to the decree.

This condemnation was instituted and conducted in the proper court, as a convenient method of taking over the defendant's property according to the agreement of purchase, and of curing any possible defect in defendant's title thereto; at the same time its actual and legal result was a final judgment of condemnation of the property, by a court of competent jurisdiction, rendered at the instance of the United States government against the defendant and said property. A final judgment of such character not appealed from, procured by, and acquiesced in by, the United States government, and fully satisfied by the payment on its part of the damages or purchase price so assessed and adjudged, could not thereafter be disturbed nor vacated.

The judgment, being in all things regular and final, precluded inquiry into the preliminary negotiations. The plaintiff may have resorted to lobbying, in the initial proceedings, to bring the property to the attention of the government authorities, and so might have caused an executive officer of another department of the government to suggest such condemnation of the defendant's real property; and yet the United States, by resort to this extraordinary power of government, had taken defendant's said property for its legitimate needs, paid the damages therefor as determined by the rules of law governing such cases, and the defendant owner had received said damages so assessed for the condemned property. Thereafter the United States had no right of appeal or of review, and no right of rescission, for all the negotiations and incidents of purchase, together with the agreement, were merged into the binding judgment, and the judgment was fully discharged, and, so far as the pleadings disclose, the defendant was enjoying the full benefits of plaintiff's services, and no effort on the part of the United States government was being made, or even threatened, to disturb the enjoyment of the proceeds of the condemnation proceedings.

In Lewis on Eminent Domain, vol. 2, § 783, it is declared that if the party condemning takes possession of the property under the proceedings (Wilmington & Susq. R. Co. v Condon, 8 Gill & J. [ Md.] 443), or pays the damages awarded (Marquette, H. & O.R. Co. v. Probate Judge, 53 Mich. 217, 18 N.W. 788), this will constitute an estoppel from prosecuting objections to the report or the proceedings, and a waiver of the right of appeal. On the same principle, in Endicott Petitioners, 24 Pick. (Mass.) 339, it is held that an acceptance of the sum awarded or decreed as damages will preclude an appeal by the defendant in condemnation. Elliott, App.Prac. § 150; People v. Mills, 109 N.Y. 69, 15 N.E. 886; Felch v. Gilman, 22 Vt. 38; Hawley v. Harrall, 19 Conn. 142; F.W.I. Co. v. Chicago Co., 11 Tex.Civ.App. 600, 33 S.W. 159; Matter of Woolsey, 95 N.Y. 135; Schatz v. Pfeil, 56 Wis. 429, 14 N.W. 628; Holland v. Spell, 144 Ind. 561, 42 N.E. 1014; Test v. Larsh, 76 Ind. 452; Byer v. New Castle, 124 Ind. 86, 24 N.E. 578; 1 Elliott on Streets and Roads, § 305. In his Appellate Procedure (section 151),...