BAIN v. WALKER, 232 Ala. 102 (1936)
166 So. 772
6 Div. 797.Supreme Court of Alabama.
February 27, 1936.Rehearing Denied April 9, 1936.
Appeal from Circuit Court, Blount County; Alto V. Lee, Judge.Page 103
P. A. Nash, of Oneonta, for appellant.
A complaint on a contract must set forth the contract or the substance thereof and aver that plaintiff has complied with his part of the contract and set forth the breach on the part of defendant. Code 1923, ? 9531 (9). On timely motion, a verdict should be set aside when it is contrary to the law and the evidence or is excessive. Code 1923, ? 9518; Corona Coal Co. v. Sexton, 21 Ala. App. 51, 105 So. 716. The affirmative charge should be given for defendant when duly requested in writing, when there is no evidence on which the jury would be justified in rendering a verdict for plaintiff. Southern R. Co. v. Woodstock Mills, 230 Ala. 494, 161 So. 519. When there are more than one count and plaintiff has failed to make out a case under some of the counts, the defendant is entitled to the affirmative charge as to such counts. Darby v. Fuller,26 Ala. App. 324, 159 So. 275.
St. John St. John, of Cullman, and J. T. Johnson, of Oneonta, for appellee.
Execution of quitclaim deed by appellee was sufficient consideration for appellant’s promise to pay him the difference between the amount due on the mortgage and the price at which the land was sold by appellant. Tolleson v. Henson, 207 Ala. 529,93 So. 458. A count in Code form is not demurrable. Code 1923, ? 9531. The common count was sufficient on which to recover the amount agreed by appellant to be paid to appellee. A special count was not necessary. Varner v. Hardy, 209 Ala. 575,96 So. 860; Carbon Hill Coal Co. v. Cunningham, 153 Ala. 573,44 So. 1016. General grounds of demurrer will not be considered by the court. Code 1923, ? 9479; Birmingham Ry., L. P. Co. v. Hunt, 200 Ala. 560, 76 So. 918; Alabama State Land Co. v. Slaton, 120 Ala. 259, 24 So. 720. Judgment overruling motion for a new trial will not be disturbed unless, after allowing all reasonable presumptions, it is clearly wrong. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Hyde v. State, 230 Ala. 243,160 So. 237. If there are two or more counts in the complaint and one is good and the verdict is general for plaintiff, the verdict will be referred to the good count. Morgan v. Embry,17 Ala. App. 276, 85 So. 580; Lang v. Leith, 16 Ala. App. 295,77 So. 445; Turnipseed v. Burton, 4 Ala. App. 612, 58 So. 959.
Joseph J. Bain held a mortgage on the farm of R. H. Walker. Upon default, the mortgage was foreclosed, and the property purchased in the name of the wife of the mortgagee. Pending the right of redemption, Mr. Bain negotiated a sale of the farm to Frank Jernigan at and for the sum of $3,000, about twice the amount of the mortgage debt. To consummate the deal with Jernigan, giving him an indefeasible title, Bain induced Walker to execute to Mrs. Bain a quitclaim deed to the property, in consideration of which Bain agreed that, after applying the $3,000 to the satisfaction of his mortgage debt, the residue would be paid over to Walker. On the execution of the quitclaim deed, the trade was closed with Jernigan in the form of a lease sale contract from Mr. and Mrs. Bain, price $3,000, payable in six annual installments of $500 each, bearing interest from date. Possession was delivered to Jernigan, who still holds the same. Jernigan failed to meet the installments of purchase money. Thereafter he and Bain rescinded the original contract, and Mr. and Mrs. Bain sold and conveyed to Jernigan the property by deed for a cash consideration of $1,500, which was paid, less a small balance, through a loan, which Jernigan, with Bain’s assistance, obtained from the Federal Land Bank. Thereafter Walker instituted this suit to recover the alleged difference between $3,000 and the amount of the mortgage debt.
The trial was had on count 1, the common count, and a special count, No. 6.
The primary issue of fact was whether Bain entered into an unconditional contractual obligation with Walker, whereby, in consideration of a quitclaim deed, barring Walker’s right of redemption, Bain should pay, or cause to be paid, the difference between $3,000 and the amount of the mortgage debt, or, as defendantPage 104
contends, it was a mere agreement to pay, if and when Jernigan should pay, with a further consent, on Walker’s part, to the subsequent transaction between Bain and Jernigan.
Under the evidence, these were clearly issues for the jury.
The passing of the statutory right of redemption was a valuable consideration for such promise. Tolleson v. Henson,207 Ala. 529, 93 So. 458.
According to plaintiff’s version, he was in no way a party to any trade with Jernigan nor concerned with his meeting his contract with Bain. Walker admits knowing the purchase money was payable in installments, and his money would accrue with the maturity of the third and later installment. But this, under his version, did not imply any condition, but merely the date of maturity, under Bain’s contract with him.
Walker having fully performed his contract by executing the quitclaim deed and surrendering possession to Jernigan, assuming, as we must, that the jury believed his version, nothing remained but an obligation to pay money at the time or times stipulated.
Such a demand is recoverable under the common count, and there was no error in the refusal of the affirmative charge. Varner v. Hardy, 209 Ala. 575, 96 So. 860.
Special count 6 was filed by leave of the court after the evidence was in to meet the state of such evidence. If, subject to special demurrer, none was interposed raising the questions now insisted upon, viz., that it does not sufficiently aver the agreement in substance and effect and does not aver full compliance on the part of plaintiff. It does, in a way, aver both, and so states a substantial cause of action. If lacking in exactness, such defect must be pointed out by special demurrer, so that the plaintiff may amend, if need be. There was no error in refusing the affirmative charge to defendant on this count.
We find no error to reverse in any rulings presented for review. Howell v. Moon, 217 Ala. 421, 116 So. 518; Western Union Telegraph Co. v. Benson, 159 Ala. 254, 273, 48 So. 712.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.