Papot v. Barbour

51 So. 725, 165 Ala. 257, 1910 Ala. LEXIS 77

• Court: Supreme Court of Alabama
• Decided: February 10, 1910
• Status: Published

Opinion

McGLELLAN, j.

— Plea 2, wherein it was averred that the approval and acceptance of the work plaintiff had engaged to do should be by the architect named in and as provided by the contract, which had. not been had, was conclusively proven; and hence the court properly gave the affirmative charge for the defendant on that theory.

Plaintiff’s motion for repleader sought a new pleading, notwithstanding he had interposed a demurrer to plea 2, which was overruled. Repleader will not be awarded after demurrer. — 18 Ency. Pl. & Pr. 492; Staple v. Heydon, 6 Modern, Case 1; Andrews’ Stephens Pl. pp. 186, 87; Potter v. Titcomb, 7 Greenl. (Me.) 302; note “e” to Stafford v. Albany, 6 Johns. (N. Y.) 5.

None of the rulings on the evidence related to the matter bearing on the averments of plea 2. The judgment must he affirmed.

Affirmed.

Dowdell, C. J., Concurs, Mayfield and Sayre, JJ., concur in the conclusion.