Camody v. White

SOMERVILLE, J. [1] The written contract, which is made a part of the complaint, does not show any obligation on the part of defendant to cut, haul, or deliver tie timber at plaintiff’s mill, or to personally have it done. Nor does it show any undertaking by them to actually employ the labor or furnish the teams required for those purposes. It does show their obligation to pay the expenses incident thereto, but with the right to reimburse themselves therefor out of the proceeds of sale, before any division thereof. In their allegations of breaches, neither count shows any violation by defendants of any obligation imposed by the terms of the contract, nor are any extraneous facts alleged upon which those breaches may be rested. Both counts were demurrable in this particular. [2, 3] In declaring upon the breach of a contract like this, it is essential to allege that the plaintiff was himself able, ready, and willing to perform his own obligations under the contract, or that he offered to do so. Long v. Addix, 184 Ala. 236, 63 South. 982. The allegation merely that plaintiff moved his mill on the premises falls very far short of'meeting this requirement, and both counts of the complaint were subject to the demurrer on this ground. [4] Neither" count shows, other than by inference merely, that any substantial amount of timber remained on the premises, available for milling purposes, or that there was sufficient to have kept the mill in operation during the period of its alleged inactivity. Assuming that the necessary data were at hand to permit of a reasonably accurate estimate of the amount, the real damage suffered by plaintiff was the loss of his profits on the ties that would have been made and marketed, but were not, because of defendants’ default ; or, if no profits could be demonstrated, he could recover for his reasonable expenditures and loss of time. Worthington v. *128 Givin, 119 Ala. 44, 24 South. 789, 43 L. R. A. 382; Danforth v. Tenn., etc., R. R. Co., 98 Ala. 614, 11 South. 60. [5] These necessary bases for a recovery were not furnished to the jury in the proper form, and hence their verdict could not have been better than an unsupported guess at the proper amount to be awarded, even assuming that a breach of the contract was proven. [6] So far as concerns the merits of the case on the evidence, it seems to be shown without dispute that defendants did not undertake to personally hire labor or furnish teams, but that plaintiff always attended to that himself, and then submitted his pay roll to defendants, who always iiaid what was thus shown to be due in that behalf. We do not think the evidence had any tendency to support the breaches charged, and therefore the general affirmative charge should have been given for defendants as requested. Eor the errors noted, the judgment will be reversed, and one will be here entered, sustaining the demurrer to each count as to the grounds above specified; and the cause will be remanded for further proceedings. Reversed, rendered and remanded. ANDERSON, O. J., and McOLELLAN and THOMAS, JJ., concur.