Ferlesie v. Cook

ANDERSON, O. J. [1 ] The trial court erred in not sustaining the defendants’ demurrer to the complaint. . Neither of the counts defines or specifies the nature and character of the breach, or what provision of the contract was breached. Prom aught that appears, the defendants may have failed to convey, may have failed to furnish an abstract, or may have conveyed, but did not have, a merchantable ' title. Moreover, the second count fails to aver a compliance, by the plaintiff, with the provisions of the contract, or to negative a breach by him before the defendants breached the same. It neither avers a performance by the plaintiff nor a readiness and willingness to do so. See form 9, p. 1194, of the Code of 1907; Long v. Addix, 184 Ala. 236, 63 South. 982. The record does not support the appellants’ second assignment of error; it allows that the demurrer to defendants’ plea 1 was overruled, and not sustained, as set out in the said assignment of error. [2,3] While this case must be reversed upon the pleading, it is not amiss to state that the plea of non est factum, by the defendant Perlesie, the mother, placed the burden of proof upon the plaintiff to prove the execution by her of the contract. The plaintiff’s evidence, not only failed to establish this fact, but the defendants’ evidence showed that she did not sign the contract, and the same should have been excluded, so far as it applies to her, upon her motion to exclude. The statement of the other defendant to Carter that his mother had signed the contract, not having been made in her presence, was not evidence against her that she had. It may have been admissible to contradict the witness, who testified that the mother did not sign the contract; but it was no evidence to establish the fact that she did sign same. [4-6] The trial court also erred in refusing the defendants’ requested charge 5. While Carter contradicted the fact, the defendant P. Perlesie testified that it was distinctly understood that the contract was not to become effective unless his mother joined in it. Nor do we think that the charge was argumentative, or covered by the defendants’ given charge 7. They involve entirely different propositions; one deals with the burden of proof, and the other deals with the result or effect of certain hypothesized facts. [7] As this case must be reversed, it is unnecessary to pass upon the motion for a new trial; but as counsel has moved to strike the bill of exceptions, because it contains quite a lengthy document, it is sufficient to say that the same was offered in connection with the motion, and, whether it did or did not set up a good cause for a new trial, it was properly incorporated in the bill of exceptions, when seeking to revise the action of the trial court upon said motion. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.