Spann v. Radford

116 So. 311, 22 Ala. App. 402, 1928 Ala. App. LEXIS 92

Opinion

RICE, J.

In a suit upon a contract for damages for its breach, there can be no recovery except in pursuance of its terms. Thomas v. Smoot, 2 Ala. App. 407, 56 So. 1. "Where none of the terms of the contract sued upon are given, manifestly no recovery could be had. It follows that count 3 of appellee’s complaint stated no cause of action, and the demurrers thereto should have been sustained.

Count 4 of the complaint was subject to the first, second, third, and fourth grounds of appellant’s demurrers, and the trial court erred in not so ruling. Code 1923, § 8034; Thompson v. New South Coal Co., 135 Ala. 630, 634, 34 So. 31, 62 L. R. A. 551, 93 Am. St. Rep. 49.

For the errors pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.