Russell v. Gregory

BRICKELL, C. J. When this cause was before this court at a former term, (Ex parte Bottoms, 46 Ala. 312), it was held, the affidavits disclosing that the vendor had disabled himself from a delivery of the cotton according to the terms of the contract of sale, the vendee had the right to treat the contract as rescinded, and sue presently for the money he had paid. Consequently the attachment, though issuing before the day appointed for the delivery of the cotton, was not premature. On the final trial in the Circuit Court, the plaintiff offered no evidence tending to show that the vendee had, before the issue of the attachment, by a sale or other disposition of the cotton, disabled himself from keeping his contract. If there was a breach of the contract, it occurred subsequent to the commencement of the suit, by the failure to deliver the cotton at the time appointed. Facts not occurring until after the commencement of suit, essential to a plaintiff’s right of recovery, will not support the action. — Donaldson v. Waters, 30 Ala. 175. The judgment is affirmed.