Ingram v. Bussey , 133 Ala. 539 ( 1901 )

McCLELLAN, C. J.

Action by B.ussey against Ingram and another. The complaint is as follows: “Plaintiff claims of defendants seventy dollars, to-wit, the value of to-wit seven hundred pounds of lint cotton, which the defendants owe to plaintiff and which was due on the 1st day of October, 1900, under a written instrument or mortgage made by defendants on the 17th of May, 1900, and plaintiff avers that the defendants expressly waive in said instrument all exemptions secured to them under the laws of Alabama.” One ground of the demurrer to this complaint was that it failed to aver any breach of the contract sued on. The demurrer should have been sustained. On a contract to pay property, an action for the value of the property cannot be maintained until there has been a, demand made for the property and a refusal or failure to deliver it, unless it is made to appear that such demand would have been futile. This complaint alleges neither a demand and refusal, nor any facts which would have excused the making of it. Nor was there any evidence adduced on the trial going to show such demand and refusal, or any facts which would have authorized suit for the money value without demand for-the property. The court-, therefore, erred also in refusing the affirmative charge requested by the defendants. — Ragland v. Wood, 71 Ala. 145, 150, and authorities there cited. If there is any custom efficacious to take contracts for the payment of cotton out of the doctrine of the case cited, there is no averment or proof thereof in this record.

We deem it unnecessary to discuss other points arising on the transcript at length. We do not find that the action before the justice of the peace was in detinue, and hence concur with the circuit court in holding that the complaint there filed was not a departure from the case tried in the justice’s court.- — Freeman v. Speegle, 83 Ala. 191; L. & N. R. R. Co. v. Barker, 96 Ala. 435.

The mortgage was properly received in evidence under the complaint. — Buford v. Raney, 122 Ala. 565; O’Conner v. Nadel, 117 Ala. 595.

Reversed and remanded.