Barney Coal Co. v. Davis

PELHAM, J. — This appeal is on the record proper without a bill of exceptions, and is taken by the defendant in the court below, who insists on certain rulings of the trial court on the pleadings as erroneous. The case has been in this court on a prior appeal, and is reported as Barney Coal Co. v. Davis, 1 Ala. App. 595, 55 South. 1023. The judgment entries show that after the defendant’s demurrers were by the court overruled, as to count No. 1 of the complaint, the plaintiff at a subsequent term of the court filed count No. 2, whereupon the .defendant interposed demurrers to the complaint as amended. These demurrers were sustained as to count 1 and overruled as to count 2. Count 2 (which will be set out by the reporter) sets up a verbal contract or agreement between the parties, whereby the plaintiff was to do certain work and labor for the defendant at a stipulated wage or price, based on the amount of work done in and about digging a slope or entry and driving an air course in defendant’s coal mine. The allegations of this count set out the contract with sufficient certainty, and allege a readiness, willingness, and ability to perform, and that the defendant breached the contract by preventing a performance by the plaintiff at. a time when the plaintiff offered to proceed under it, and was ready, willing, and able to do so. The contract declared upon was capable of being rendered certain as to its period of duration by showing the date the defendant actually did commence shipping coal. This date was alleged, and the contract declared on was made sufficiently definite and certain not to render it void for uncertainty. — Foy & Bro. v. Dawkins et al., 138 Ala. 232, 35 South. 41. The second count shows a good cause of action, and assigns a sufficient breach, and is not demurrable because of the fact (even if it be a fact) that part of the [240] damages claimed are not recoverable. — Montgomery Mfg. Co. v. Thomas, 20 Ala. 473; Kennon v. Tel. Co., 92 Ala. 399, 9 South. 200; Hayes v. Miller, 150 Ala. 621, 43 South. 818, 11 L. R. A. (N. S.) 748, 124 Am. St. Rep. 93; Woodstock Co. v. Stockdale, 143 Ala. 550, 39 South. 335, 5 Ann. Cas. 578. The judgment entries further show that after the defendant’s demurrers were sustained to count 1 and overruled as to count 2 of the complaint, the defendant filed pleas Nos. 1, 2, 3, 4, and 5 and that the plaintiff interposed demurrers to pleas 3, 4, and 5 that were sustained by the court. The only assignment of error predicated upon these rulings is in the following language: '“The trial court erred in sustaining plaintiff’s demurrers to defendant’s pleas Nos. 1, 3, 4, 5.” It is not shown that the court sustained demurrers to plea No. 1, and as such a ruling is jointly made part of the basis of the error assigned, it cannot be said to be well taken, and must fail. — Brent v. Baldwin, 160 Ala. 635, 49 South. 343; Aetna Life Ins. Co. v. Lasseter, 153 Ala. 630, 45 South. 166, 15 L. R. A.(N. S.) 252. Besides the ruling of the court in sustaining demurrers to these pleas is not discussed or insisted upon by counsel for appellant in brief filed, and is waived. — Western Ry. of Ala. v. Russell, 144 Ala. 142, 39 South. 311, 113 Am. St. Rep. 24; Hodge v. Rambo, 155 Ala. 175, 45 South. 678. The matters set up in these pleas could have been introduced in evidence under the general issue (Loughridge v. Thompson, 20 Ala. 828), and no injury resulted from sustaining demurrers to them. There is no assignment of error on the record as to the ruling on demurrers to pleas 7 and 8, and they cannot be considered. — Birmingham Ry. Co. v. Hinton, 158 Ala. 470, 48 South. 546. [241] The record shows nothing' as to the errors assigned and insisted upon, authorizing a reversal of the judgment appealed from, and an affirmance is ordered. Affirmed.