Chambers v. Seay

McCLELLAN, J. The first three counts of the complaint are in assumpsit, claiming for money due by account, for-money paid at the request of the defendant, and for work and labor done for the defendant, respectively. The original fourth count, and the fifth and sixth, respectively, claim damages for a breach of duty on the part of the defendant, the alleged duty being imposed by the .written contract, which is set out, and each of these counts is essentially in case. —Myers v. Gilbert, 18 Ala. 467; Whilden v. M. & P. Nat. Bank, 64 Ala. 1. The sixth and seventh assignments of demurrer, taken to the misjoinder of counts, were, therefore, properly sustained. — Chambers v. Seay, 73 Ala. 379. 2. The complaint having been amended, so as to conform to the ruling of the court on demurrer, the plaintiff claimed in the original counts, and on the amended fourth count, the sum of five thousand dollars as by account for money paid, and work and labor done at the request of the defendant, more than three years before suit • brought. The general issue, and the statute of limitations of three years, were pleaded. The effort of plaintiff appears to have been to bring his cause of action within subdivision five of section 2615 of the Code of 1886; but the bill of exceptions, which purports to set out all the evidence, shows an utter failure in this effort. On the contrary, it is expressly stated, that “it was and is conceded by plaintiff, and agreed by and between 560 tbe parties,” that tbe action was not upon tbe contract o£ agency, “but was and is a suit to recover,” not money loaned, nor upon a' stated liquidated account, but “the reasonable value of services rendered under said contract,” &c. It clearly appears that these services were rendered, and plaintiff’s claim to be recompensed for them accrued, more than three years before this suit was instituted. On.this state of pleadings and proof, the court, at the request in writing of the defendant, correctly charged the jury, that if they believed “the evidence, they must find for the defendant on account of the bar of the statute of limitations of three years.”—Code, § 2618. Affirmed.