Withers v. Knox , 4 Ala. 138 ( 1842 )

GOLDTHWAITE, J.

The breach in this" case is clearly insufficient. The contract is to pay a certain sum in promissory notes, due at a specified time; the money could not be demanded on this contract until there had been a failure to deliver notes according to the agreement, therefore an averment that the money was not paid, is not sufficient to show that the contract was broken.

It is said by Mr. Chitty, that the allegation of the breach, must obviously be governed by the nature of the stipulation. It should be assigned in the words of the contract, either negatively or affirmatively; or in words which are co-extensive with the import and effect of it. [1 Chitty on Plead. 365.]' And in general, if a breach be assigned in words containing the sense and substance of the contract,it is sufficient. [Ib.366.] The sense and substance of this contract is to pay promissory notes, endorsed by the defendant, and cannot be construed as an absolute engagement to pay a sum of money, without a manifest violation of the intention of the parties. It is not material to consider what consequences flow from the breach of this contract, with respect to the ascertainment of damages, because that is not the matter now to be determined: the only question is as to what constitutes a breach of the contract. If the form of the instrument was slightly varied, and so as to read, “to pay to the plaintiff promissory notes to the amount df eight hundred and fifty dollars, due on the first January,” it Would free the subject from all doubt; yet in that form the contract would have no term involved which is not now contained in it, and consequently must be the same in its legal effect.

We are satified the declaration is not sufficient on demurrer.

Let the judgment be reversed and the cause remanded.