Evans v. Southern Railway Co. , 133 Ala. 482 ( 1901 )

SHARPE, J.

'Count 1 of the complaint first filed in the circuit court, was in case and count 2 was in assumpsit. Those counts were impropely joined. — Morris v. Eufaula Nat. Bank, 122 Ala. 580.

Count 3 was not subject to the demurrer. An agreement by a railroad company with a landowner to build and maintain fences and cattle guards in consideration of his grant of a right of way, is prima facie binding on the company to pay the landowner for injuries to his animals entering on the track in consequence of the company’s fault in failing to maintain fences in accordance with the terms of the contract. — Chicago, etc., R. Co. v. Barnes, 116 Ind. 126; 38 Am. & Eng. R. Cases, 297; Louisville, etc., R. R. Co. v. Sumner (Ind.), 24 Am. & Eng. R. Cases, 641; Ky. Cent. R. Co. v. Kenney (Ky.) 20 Am. & Eng. R. Cases, 458.

While such a contract is continuing, breaches of it may be several and continuing. — Phelps v. The New Haven, etc., R. Co., 43 Conn. 453. It is, therefore, unnecessary for a complaint in declaring on the contract to aver when the contract was first broken.

If the contract was not in writing and is for that reason obnoxious to the statute of frauds the objection is matter for plea and not for demurrer. — Strouse v. Elting, 110 Ala. 132.

Recitals in the minute entries are not proper evidence on appeal- that exceptions were taken to rulings on the several motions assigned for‘error, and there being no bill of exceptions those assignments are without support.

Reversed and remanded.

Tyson, J., concurs- in the result, but dissents as to the first point,'being of the opinion that count 2 is in case and that there was no misjoinder. — White v. Levy, 91 Ala. 179; City Nat. Bank v. Jeffries, 73 Ala. 191.