Werth v. Montgomery Land & Improvement Co.

• Citation: 7 So. 198,89 Ala. 373
• Court: Supreme Court of Alabama
• Decision Date: 27 January 1890
• Parties: WERTH v. MONTGOMERY LAND & IMP. CO.

7 So. 198

89 Ala. 373

WERTH v. MONTGOMERY LAND & IMP. CO.

Supreme Court of Alabama

January 27, 1890

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Action of assumpsit.

Rice &amp Wiley, for appellant.

Tompkins & Troy, for appellee.

SOMERVILLE J.

1. The complaint contains three separate counts, the two first being common counts, respectively for goods and chattels sold, and on an account stated. The third declares on a special agreement in writing to pay a sum certain for 30 shares of the capital stock of the plaintiff corporation. The defendant answers by interposing a single special plea, which professes to go to the whole complaint. This plea alleges fraud in the procurement of the defendant's subscription to the said stock which constituted the consideration of the written instrument described in the third count. While the plea therefore, professes to answer the whole complaint, including the three counts, it in fact answers only the third count. The settled rule of pleading is that, when a plea assumes to answer the whole declaration or complaint, but fails to negative the cause of action set out in each count, or, in other words, answers only a part of the complaint, it is demurrable. Wilkinson v. Moseley, 30 Ala. 562; Tomkies v. Reynolds, 17 Ala. 109; White v Yarbrough, 16 Ala. 109; Galbreath v. Cole, 61 Ala. 139. The reason is that each count purports on its face to disclose a distinct right of action, unconnected with that stated in any of the other counts, and this is so whether the suit in fact embraces two or more causes of action, or only two or more different statements of the same cause of action. Whether, therefore, the plaintiff claims a recovery in such case, upon one right of action only, or upon several, cannot appear, except when disclosed by the evidence. It does not appear on demurrer. The plaintiff, by maintaining one good count, will establish his right of recovery, although he fail on all the others. Hence a plea failing to answer every good count, is bad, and its insufficiency may be taken advantage of by demurrer. Gould, Pl. p. 159, c. 4, §§ 4-6; Steph. Pl. (Tyler,) 246; Heard, Civil Pl. 161; Tabler v. Coal Co., 79 Ala. 377. On this principle the eleventh assignment of the plaintiff's demurrer to the special plea of defendant was properly sustained, without regard to any question affecting the merit or soundness of the other assignments. Non constat...