Bessemer Savings Bank v. Rosenbaum Grocery Co. , 137 Ala. 530 ( 1902 )

TYSON, J.

The complaint, which comprises a sim gle count, seems to count on two promises by defendants to pay the debts of Sapp; & 1-Iagicr — one made by them to Sapp & Haglcr in consideration of a sale of their business to them and the other made to Willis & Edwards in consideration of their purchase of the assets formerly in the name of Sapp & Hagler from them. The first of th,ese promises is not alleged.bo be in writing expressing •the consideration, while the second is shown to be in writing which writing is set out in haec verba. This ■second promise may be entirely eliminated, and the count would still state a good cause of action, a perfectly valid objection on the part of the defendants to pay the debt of the plaintiff and was not subject to any of the grounds of the demurrer purporting to go to the complaint in its entirety. It is of no consequence whether that promise was oral or written. — McKenzie v. Jackson, 4 Ala. 230; Cameron v. Smith, 11 Ala. 259; Martin v. Black, 21 Ala. 721; Mason v. Hall, 30 Ala. 599; Shottwell v. Gilkey, 31 Ala, 724; Godden v. Pierson, 42 Ala. 370; Burkham v. Mastin, 54 Ala. 122; Graves v. Shulman, 59 Ala. 406; Locke v. Humphries, 60 Ala. 117; Coleman v. Hatcher, 77 Ala. 217.

The right of the plaintiff to enforce the promise1' is thoroughly well settled. — Henry v. Murphy, 54 Ala. 246; Young v. Hawkins, 74 Ala. 370; Dimmick v. Register, 92 Ala, 458; Coleman v. Hatcher, supra.

Whether the' other portion of the complaint which seems to count upon the second promise was subject to any of the grounds of the demurrer it is unnecessary to decide..

The ground of demurrer going to that part of the complaint which seeks to recover costs and attorney’s fees, should have been overruled. A demurrer must challenge the sufficiency of the count as a whole and is not the proper mode of'evoking a decision of the court as to the right of the plaintiff to recover these items. If not recoverable, the proper way to raise the objection is by motion to strike or by objection to evidence or by request for proper instructions to the jury.

The court committed an error in, sustaining the demurrer to the complaint, and the judgment must, be reversed and the cause remanded.

Reversed and reimanded.