Marsicano v. Phillips

PELHAM, J. Quite a number of charges, designated by captions in the margin of the record as “plaintiff’s given charges” and “defendant’s refused charges,” are set out in the transcript; but the transcript contains no bill of exceptions. Counsel for the appellant and appellee argue at some length on the court’s rulings in giving and refusing these charges. The transcript nowhere affirmatively shows that the charges were separately requested, or that they were requested in Avriting, or requested before the jury retired, and, not being presented by a bill of exceptions, they cannot be reviewed here.- Tuskaloosa Co. v. Logan, 50 Ala. 503; Mobile Savings Bank v. Fry, 69 Ala. 348; A. G. S. R. R. Co. v. Dobbs, 101 Ala. 219, 12 South. 770; Nuckols v. State, 109 Ala. 2, 19 South. 504; Ala. Co. v. Wagnon, 137 Ala. 388, 34 South. 352; Sou. Ry. Co. v. Lynn, 128 Ala. 297, 304, 29 South. 573. - The appellant (defendant beloAv) also assigns as error the rulings of the court on the defendant’s motion to strike portions of the plaintiff’s complaint. No ruling by the court on this motion is shown by any part of the transcript, and as such ruling, to be available as a predicate for the assignment of error, must be presented by bill of exceptions, Ave cannot therefore consider this assignment. — Harrison v. Ala. Midland Ry. Co., 144 Ala. 246, 40 South. 394, 6 Ann. Cas. 804. It may be that each of the two counts of the complaint contained averments claiming certain damages that Avere not recoverable, but the proper Avay to reach such a defect is by motion to strike the averments appertaining to the damages not recoverable, or by an objection to the evidence when offered in support of such claims, [233] or by asking special instructions of the court to the jury, and not by demurrer. — Hayes v. Miller, 150 Ala. 621, 43 South. 818, 11 L. R. A. (N. S.) 748, 124 Am. St. Rep. 93; Woodstock Iron Co. v. Stockdale, 143 Ala. 550, 39 South. 335, 5 Ann. Cas. 578. The complaint was not subject to those demurrers aimed at it for a failure to contain necessary averments to put the defendant on notice of the different items of damage claimed as resulting from a breach of the contract of rental. It is not necessary that a complaint in an action for damages for breach of a contract should itemize each matter claimed as a damage. This is a matter of evidence, and not of allegation. — Dickerson v. Finley, 158 Ala. 149, 48 South. 548. Nor was the complaint deficient in failing to aver that the landlord had been given notice of the defect and the necessity for repair. Both counts of the complaint were for failure to put in repair, and clearly have reference to an agreement to repair at the time of the commencement of the rental agreement, and do not refer to a covenant to keep in repair during the rented period. “A distinction between to put in repair before the commencement of the lease and to keep in repair during the rented period is very properly made .in the case of Gerzebek v. Lord, 33 N. J. Law, 240, where the court held that the first covenant was broken by a failure to repair within a reasonable time; but, as to the second covenant, notice from the tenant to the landlord was necessary. Of course, it would not be necessary for the tenant to give the landlord notice of the defect if he already kneAV of it; but, in order to charge the landlord Avith a breach of the contract to keep in repair, during the lease, the pleading should charge that notice was given him or that he kneAV of the defect.” — Tyson v. Weil, 169 Ala. 558, 565, 53 South. 912; Ann. Cas. 1912B, 350. [234] The complaint was sufficiently certain and definite in its allegations as tested by the demurrers aimed at it, and the court properly overruled the demurrers. Affirmed.