Eastland v. Sparks

LIGON, J. The record shows, that the defendant demurred generally to the plaintiff’s declaration in the court below, but it does not appear that any action was had on the demurrer in that court. The rule in such cases is, that the Appellate Oourt will presume that the demurrer was overruled, before the issue of fact was submitted to the jury. Kirk et al. v. Suttle, 6 Ala. 679. Neither does it appear that a plea was filed; but when the judgment entry shows, as it does in this case, that the parties appeared, and there is a finding by the jury, this court will presume it was on a proper issue, although no plea appears on the record. Lucas v. Hitchcock, 2 Ala. Rep. 287. The declaration in this case is in indebitatus assumpsit, for the use and occupation of lands against both the defendants ; and the proof shows a special contract of lease between, Ragsdale and Bird Sparks only, by which the rent reserved is to be paid in specific articles, and is subject to abatement to the value of certain improvements to be made by the tenant. • The agreement does not fix the value of the articles in which the rent is to be paid, nor does it furnish a rule by which damages for a breach of it may be measured, or ascertained by a mere calculation. This being the case, no recovery can be had on it in the present action; for we have repeatedly held, that where there is a special agreement to pay in specific articles, and the contract itself does not fix their value, or furnish a rule by which it may be ascertained by a mere calculation, no recovery can be had on the common counts in assumpsit. Oswald v. Godbold, 20 Ala. Rep. 811; [610] Snedicor v. Leachman, 10 Ala. Rep. 330; Sprague v. Morgan, 7 Ala. Rep. 952; Aikin v. Bloodgood, 11 Ala. Rep. 221. There is no error in the charge of the court, and the judgment is consequently affirmed.