Philip Carey Mfg. Co. v. Southern Const. Co.

WALKER, P. J. Upon the amendment of the complaint by adding another count, the demurrer which had been interposed to the original complaint was, as stated by the minute entry, “refiled to the complaint as amended.” The.effect of this action was to make the demurrer applicable to the amended complaint as a whole, not to each count separately and severally; and, if either of the counts was not subject to the demurrer on the grounds stated, it could not properly be sustained. [296] Certainly the second count of the complaint as amended was not lacking in the requisite certainty and definiteness in averring’ the contract between the parties, and a breach by the defendant of a duty imposed upon it by that contract. It was not subject to the demurrer interposed on either of the grounds stated. It is not intended to be intimated that the demurrer would have been regarded as well taken to the first count if' it had been directed against that count separately. A contract to guarantee for a term of five years a roof furnished for and put on a building is not an “agreement, which, by its terms, is not to be performed within one year* from the making thereof,” within the.meaning of these words as used in the statute of frauds. (Code, § 4289), as the contingency upon which the liability is to accrue may happen within one year.—Springfield Fire & Marine Ins. Co. v. De Jarnett, 111 Ala. 248, 19 South. 995; Commercial Fire Ins. Co. v. Morris & Co., 105 Ala. 498, 18 South. 34; 20 Cyc. 201, 205. In the case at bar the breach of duty averred and. relied upon was within much less than a year from the-date of the making of the contract. In reference to the assignments of error based upon the claim that there was a variance between the allegations of the complaint and the proof, it is enough to-say that in the trial before the court sitting without a jury no suggestion of a variance was made. When no-such objection was made in any way in the trial court,, it cannot be raised for the first time on appeal.—Odom, as Ex., v. Moore, 147 Ala. 567, 41 South. 162. Under the familiar rules governing the review on appeal of the action of a trial court on a motion for a new-trial, it cannot be said that the record presents a case-warranting a reversal of the order of the court below-refusing a. new trial. Affirmed.