Hart v. Bludworth

49 Ala. 218

Opinion

B. F. SAFFOLD, J.

— The demurrer to the complaint ought to have been sustained. A breach of an independent covenant or agreement is not sufficiently assigned by alleging that the defendants “ have failed and refused to comply with their said contract.” The defendants are not apprised in what particular they have failed. The defect is not cured by the averment “ that said cotton, at the time and place it should have been delivered, was reasonably worth the sum of fifteen hundred dollars.” It suggests the nature of the breach, but does not charge it.

The meaning of the charge asked by the defendant, which was refused, is not clear. The written contract, being the foundation of the suit, and executed by the parties sought to be charged, proved itself, unless its execution had been denied by a sworn plea. R. C. § 2682. But there was no evidence of any breach. The only evidence introduced was the writing, and the admission in respect to the value of the cotton.

The judgment is reversed, and the cause remanded.