Sloss-Sheffield Steel & Iron Co. v. Payne

• Decision Date: 22 April 1915
• Docket Number: 51
• Citation: 192 Ala. 69,68 So. 359
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. PAYNE.
• Court: Alabama Supreme Court

68 So. 359

192 Ala. 69

SLOSS-SHEFFIELD STEEL & IRON CO. v. PAYNE.

No. 51

Supreme Court of Alabama

April 22, 1915

Appeal from City Court of Birmingham; John H. Miller, Judge.

Assumpsit by J.D. Payne against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Transferred from the Court of Appeals of Alabama, under section 6 of the act of 1911, p. 450.

The following are the counts of the complaint referred to:

"(2) For $1,999, damages for the breach of an agreement entered into by the defendant on, to wit, *** by which it promised to allow plaintiff to remove from the property of defendant and sell for his own use and benefit about 4,000 yards of brown stone, at a royalty, to be paid by plaintiff to defendant, of $1 per car. Plaintiff avers that notwithstanding said agreement defendant has failed and refused to allow plaintiff to remove and sell for his own benefit and use said stone at $1 per car.

"(3) Breach of agreement, in substance, as follows Defendant agrees that plaintiff should remove from property of defendant certain stone and sell the same for his own use and benefit, in consideration of plaintiff paying therefor a royalty of $1 on each car of stone used by plaintiff. Plaintiff avers that notwithstanding he has been ready, able and willing to pay $1 per car for each car of said stone defendant failed to do its part of said contract, in that it refused and failed to comply with the following provisions thereof: It failed to allow plaintiff to remove and sell said stone at the rate of $1 per car, and refused to allow plaintiff to sell and use said stone at any price less than 15 cents per yard."

"(7) Same sum due from it by account as the value of six tram cars, two wagons, three tipples, grading of 400 yards of tram track, and ties for said tram track belonging to plaintiff, and placed upon defendant's property in and about carrying out a certain contract, which said property defendant wrongfully appropriated to its own use without the consent of plaintiff, and kept and retained the benefit of same without paying plaintiff for the same, which sum is now due and unpaid."

Tillman Bradley & Morrow and John S. Stone, all of Birmingham, for appellant.

Stallings, Nesmith & Drennen, of Birmingham, for appellee.

ANDERSON C.J.

In an action for the breach of a contract, the complaint should set out or describe all those parts of the contract which are material for the purpose of enabling the court to form a just idea of what the contract actually was, or which are necessary for the purpose of providing the jury with a criterion in the assessment of damages, with certainty. 1 Chitty (16th Ed.) 277; Manier & Co. v. Appling, 112 Ala. 666, 20 So. 978; Sloss Co. v. Payne, 64 So 617; Elmore, Quillian & Co. v. Parish Bros., 170 Ala. 499, 54 So. 203. It may be that good pleading would require that count 2 should define the kind of car for which the plaintiff was to pay, in order to fix the price, but we may...