Donnelly v. House

SIMPSON, J. This action was commenced in the justice of peace court by the appellant against the appellee for rent claimed to he due on a written contract of renting. The first assignment of error insisted on by the appellant is to the action of the court in overruling the demurrer to plea E; and it is first insisted that the ground of demurrer, “that said plea is the mere conclusion of the pleader,” should have been sustained. Said plea sets up an agreement, which it is alleged was made on the 15th day of March, 1906, by which the plaintiff agreed to place certain repairs on the rented premises, fe*- a sufficient consideration from the defendants to the plaintiff, alleges the breach, and claims that the defendants were thereby damaged to the amount of $200 in the use of the house and rooms, which the defendants offer to sel off. The plea sufficiently alleges the facts upon which the damages are claimed, and it is not subject to said cause of demurrer. It is next insisted that said plea is subject to the cause of demurrer, “for that said plea sounds in damages merely.” “A debt or demand ‘not sounding in damages merely’ is one which, when the facts upon which it is based are established, the law is capable of measuring accurately by a pecuniary standard.” — Code 1907, § 5859; Cage & Salter v. Phillips, 38 Ala. 382. The plea is not subject to this cause of demurrer. The matters alleged in plea E were practically the only issues raised in the case, and it was only to the spe [328] cial contract therein set up, and the set-off therein presented, that the evidence was directed. The original lease contract provided that the premises were leased “for occupancy by them as a residence and not otherwise;” also that “the party of the first part (the lessor) shall not be required to do any repairs upon the building herein leased, unless so stipulated and agreed upon, in writing, at the commencement of this lease;” and also' that he should not be liable for any damage from rain, wind, etc. The agreement or contract for repairs, set up in said plea E, being a new and independent contract, must, in order to be legally binding, and enforceable by way of set-off, be shown to have all the elements-of a contract; a very important one being a consideration. The testimony of the principal defendant herself shows merely that the lessor, some time after she had gone into possession under the lease, promised to have certain repairs done. The only semblance of a consideration attempted to be set up in any of the pleadings is that she threatened to abandon the premises if he did not mate the repairs, which she had no right to do, under the contract; hut she distinctly denies that in her own testimony, so that the agreement is left entirely without a consideration. This of itself was sufficient to warrant the giving of the general charge requested in writing by the plaintiff, without alluding to the fact that the suit is against two parties and the agreement set up as a set-off, if made at all, was with only one of them. It is unnecessary to consider the errors claimed in regard to the admission of evidence and to other charges. The judgment of the court is reversed, and the cause remanded. Dowdell, C. J., and Denson and Mayfield, JJ., concur.