Vincent v. Rogers , 33 Ala. 224 ( 1858 )

STONE, J.

When this case was heretofore in this court—January term, 1857—we held, that the written contract declared on, per se, created a prima-facie debt, on which an action at law can be maintained; but, we added, “ if, in pursuance of the apparent intention of the instrument offered in evidence, Rogers entered upon and executed, either in whole or in part, the duties which he seems to have taken upon himself, we are satisfied no action at law can be maintained on the contract, until a settlement is had, and a balance struck.”

In another place we said, “ If, on the other hand, Mr. Rogers has incurred no expenses or liabilities for Miss Vincent under said agreement, or if a settlement has been had and abalance struck, then an action at law is clearly maintainable.”

On the former trial, nothing was presented before us but the written contract; and hence we only pronounced on the prima-facie intendments, and what would overturn them. The present record raises a question not presented by the former one. The amended complaint avers, that in a former suit by the present plaintiff against the present defendant, and under appropriate issues, evidence was given by the defendant of all items of board, schooling, clothing, &e., which he ever incurred for and on account of the plaintiff; that the jury considered upon said items, and gave their verdict; that the court gave judgment thereon, which judgment has never been reversed; and that these are the only items of expense ever incurred by defendant for the plaintiff. These averments are drawn out with great particularity, and omit no material fact, necessary to the proper pleading of a former recovery. If the averments in the amended complaint be true, this case, in its legal bearings, must stand as if the parties had come to a settlement, and plaintiff had paid to defendant all items of charge and expense incurred on her account.-—-Evaus v. Billingsley’s Adm’r, at the last term, and authorities therein collected. The demurrer admits the truth of every thing that is well pleaded. This being the case, the written contract must stand restored to the state it would be in, if Mr. Rogers had never incurred any expense or liability for plaintiff, and an action at law can be maintained on it.—Bee, also, Cowen & Hill’s Notes to Phil. Ev. (edition by Van Cott,) part H, page 164.

The judgment of the circuit court is reversed, nonsuit set aside, and the cause remanded.