Harris Transfer & Warehouse Co. v. Moor , 10 Ala. App. 469 ( 1914 )

PELHAM, J.

The appeal is on the record without a bill of exceptions, and the only two errors assigned relate to the ruling of the trial court in overruling defendant’s (appellant here) demurrers to the sixth count of the complaint; and, second, in sustaining appellee’s demurrers to appellant’s sixth plea.

As to the first assignment, it is enough to say that the record shows no judgment of the court on the demurrers to the sixth count. We find set out in the trans-script demurrers to the complaint filed on the same day that the complaint was amended by filing count No. 6. These demurrers, however, seem to be directed at other counts of the complaint, and are set out in the transcript before either amended counts 5 and 6; but, even if they be taken as interposed to count 6, the record is entirely silent, so far as showing any disposition of them or ruling on them as to count 6 by any order or judgment of the court, and Avill be treated on appeal as having been abandoned. — Henderson v. Berry & Co., 145 Ala. 404, 39 South. 662; Gen. Elec. Co. v. Ft. Deposit, 174 Ala. 179, 56 South. 802.

By plea No. 6 the defendant undertook to set up that provision of the statute of frauds which declares that an “agreement which, by its terms, is not to be performed Avithin one year from the making thereof,” is void, and the party not to be charged therewith unless the same is in writing. — Code, § 4289, subd. 1. The allegations of the count of the complaint which the plea purported to answer shoAV that the contract or agreement was one Avholly executed on one side, and that nothing remained to be done on the other but to pay the amount stipulated for the services that had been performed on the one side and the benefits received and accepted upon the other side. That provision of the statute of frauds sought to be pleaded does not apply to such a state of facts as set up by this count of the complaint as a basis for recovery, although it is stipulated by the contract that the money is not to become due or payable until after the expiration of the year. — Rake’s Adm’r v. Pope, 7 Ala. 161. The contract is shoAvn by the averments not to be executory, but to have been voluntarily executed by the parties, with nothing remaining to be done but to pay the money. — Carbon Hill Coal Co. v. Cimningham, et al., 153 Ala. 573, 44 South. 1016. The statute of frauds requiring certain contracts to be in writing applies to executory, and not to executed, contracts. — Kling v. Tunstall, 124 Ala. 268, 272, 27 South. 420; Rhodes, Adm’r, v. Storr, 7 Ala. 347; Gafford v. Stearns, 51 Ala. 434; Lagerfelt v. McKie, 100 Ala. 430, 14 South. 281; 20 Cyc. 302.

The court was not in error in sustaining demurrers to plea No. 6 setting up the statute of frauds as a defense to the. sixth count of the complaint.