Brown v. Fogarty ( 1930 )

Complying with a request made by appellant's counsel, we are willing to extend the opinion in a manner which we thought unnecessary, when considered in connection with cases there cited.

The complaint is for the breach of a contract. It is not in tort. Therefore, the plaintiff must be a party to the contract, as she does not undertake to show facts which entitle one to sue for breach of a contract between third persons, when its direct purpose was for the benefit of plaintiff, but cannot do so when the benefit to the plaintiff was only incidental and indirect. The contract which is the basis of the action was not alleged with sufficient detail, as to its parties, the time of its execution, and its duration, and whether the promise to repair was a part of the original contract or subsequently added, and, if the latter, whether there was any new consideration for it, and whether it was verbal or in writing. It was therefore subject to the same defects as were pointed out in Adler v. Miller, 218 Ala. 674, 120 So. 153. When such is the case, its averments cannot be supplied by the proof, as was there pointed out. It is sufficient, we think, merely to say that in this nature of action, where the suit is for the breach of a contract, the same particularity in pleading the contract is necessary as would be true in suing for the breach of any other contract.

We undertook to point out in the opinion that the complaint did not sufficiently do so, and referred to Adler v. Miller, supra, where this question was fully discussed.

Rehearing overruled.