Williams v. Harper , 1 Ala. 502 ( 1840 )

GOLDTHWAITE, J.

— 1. We think this declaration is substantially good, without considering the view taken of the obligation as presenting distinct and independent stipulations; one secured by a penalty, and the other standing unsecured, as a mere promise to pay a sum certain on a particular contingency.

It will be perceived that the obligation, if correctly set out, is not drawn in a very artificial manner, and from this circumstance, it is not unlikely the pleader was embarrassed in ascertaining precisely what was meant by the parties; instead therefore, of setting out only the legal effect of the obligation, he has chosen to let it speak for itself, by inserting its condition in hsec verba, in the declaration. It is manifest if the sum demanded in the commencement of the declaration is stricken out, that all incongruity vanishes with the elimination, in the case of Lord v. Houston, (11 East. 62,) a similar objection was taken to the declaration, and Lord Ellenborough then said there is no difficulty in disposing of this case in this court ; (i. e. the King’s bench) where the proceedings are by bill, the words at the beginning of the plea,¿/W he render to him so much, which raise the question are themselves superfluous, and therefore may be rejected: by rejecting these words there is in each count, a perfect demand of a sum certain, without reference to the sum first mentioned in the declaration.” A similar decision was made in the court of common pleas, in McQuillon v. Cox. (1 H. Black, 249.)

These cases are conclusive to show that the objection taken to declaration cannot prevail; for if the sum named in the commencement is stricken out, no assertion elsewhere appears that the debt demanded is one sum or the other, and the plaintiff would recover according to the legal effect of the contract.

2. With respect lo the pleas demurred to, we are clear that the averment of notice was essential. The fact that the defendant was prepared and able to make a title, was within his knowledge; but could not be known to the plaintiff without information derived from the defendant. In this essential particular, thiá case differs from that of Wade v. Killough, (5 S.& P. 450) for there the agreement was to make the title absolutely on a certain day; here the title was only to be made on a contingency. The plaintiff was not bound to prepare or tender a deed, until advised to do so by the defendant.

Let the judgment be affirmed.