Long v. Addix

ANDERSON, J.

— “While a condition Avhich qualifies or defeats the plaintiff’s claim, being a condition subsequent, may be safely ignored by the plaintiff in his pleading, it may„ be stated, as a general rule, that performance by the plaintiff of a precedent condition must be averred in a complaint or declaration.” “In lieu of allegations of performance the plaintiff may allege facts in excuse of performance. Thus it is sufficient to aver that the defendant disabled himself from performing his covenant to convey certain land by conveying it to a stranger, or that the defendant repudiated his contract, or that the defendant has prevented performance.An averment that the defendant has Avaived performance on the part of the plaintiff is also sufficient to dispense Avith an allegation of performance. The Avaiver must, however, clearly appear. If plaintiff intends to-rely on facts which show a waiver of performance on the part of the defendant,' he must plead such facts. He cannot plead performance and recover under proof of a waiver of performance.” — 4 Am. & Eng. Ency. PI. & Pr. 627-629.

“When mutual covenants go to the whole consideration of both sides, they are dependent conditions, and performance must be averred in an action by either party for a breach, or, instead, an offer of performance may be alleged, and at least a readiness to perform must be shown by the party seeking to enforce performance.” And this rule obtains as to concurrent acts. That is, where the performance of an act by one party is intended to be concurrent with an act to be performed by the other, neither party can maintain an action against the other without an allegation of performance or of an offer to perform on his part, or an averment of facts, which constitute, according to the rule heretofore laid down, a sufficient excuse for failing to perform or to offer to perform.

“If there was in fact neither performance nor a tender of performancce, it has been held that an averment of readiness and willingness to perform is necessary and sufficient.” — 4 Am. & Eng. Ency. Pl. & Pr. 639; Jones v. Somerville, 1 Port. 437; Broughton v. Mitchell, 64 Ala. 210.

“It is a well-settled rule of law that when a Contract is dependent — that is, when one agrees to sell and deliver, and the other to pay on delivery, in order to entitle either party to sue for a breach — he must show that he was able and ready to perform his part of the agreement.” — Davis v. Adams, 18 Ala. 266; Brady v. Green, 159 Ala. 482, 48 South. 807; Elliott v. Howison, 146 Ala. 568, 40 South. 1018.

In passing upon a demurrer to a complaint or plea, the allegations must be taken more strongly against the pleader, and no inferences must be indulged, in order to import correctness into same.

The third count of the complaint in the case at bar was subject to defendant’s eighth and ninth grounds of demurrer. The complaint does not aver that the cot,ton was paid for in advance, or was to be paid for at a future clay, and from aught that appears, the contract involved mutual or concurrent acts, and was a cash transaction, and the plaintiff should have averred a willingness to receive the cotton, as well as a willingness and ability to pay for same when delivered.

In the absence of an averment to the contrary, the complaint imports that the sale was for cash. — Brady v. Green, supra; Robbins v. Harrison, 31 Ala. 160; Loval v. Wolf, 60 South. 298; Veitch v. Atkins, 5 Ala. App. 444, 59 South. 746. The complaint does charge that the sale was to be governed by the “Bremen Cotton Exchange,” but the rules are not set up, nor does it appear from any paid of said count 3 that the cotton had already been paid for, or that it was not to be paid for in cash on delivery.

Replication A sets up a denial of any modification of the contract, except as to an extension of time, and also denies that the same was abrogated, as charged in the defendants’ pleas, and charges that the defendants did not comply with the contract as extended, in that they failed to ship the cotton within said extended time. In other words, it confesses that the time was extended, but denies that the contract was abrogated by the plaintiff, as charged in said pleas, and then charges a breach by the defendants of the contract as modified. This replication may be no more than a general one, but there was no error in refusing the motion to strike, or in overruling the demurrer to same.

Replications B and C do not traverse the pleas as to the extension of time, and do not traverse the allegation that the plaintiff’s agent notified the defendants, in February, 1911, not to ship the cotton, but set up an agreement subsequent to February; that is, in March, 1911, plaintiff demanded the cotton, and defendants agreed to ship it under the terms of the contract, ,and failed to do so. These replications do not set up the time within which the defendants failed to ship the cotton, or that the time as fixed by the last agreement had expired. In other words, they do not traverse the special pleas, bnt attempt to avoid same by showing a subsequent agreement to ship, which was made in March, 1911, but do not set up or show a breach, as they do not fix any period at which the cotton was to be shipped. It may be questionable as to whether or not the grounds of demurrer, as interposed, sufficiently point out the defects to replications B and C, and it is therefore unnecessary to determine whether or not the trial court committed reversible error in this respect, as the case must be reversed upon other grounds. It is sufficient to say, for the purposes of another trial, that said replications are not good as against an appropriate demurrer.

The judgment of the circuit court is reversed and cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Mayfield and de G-raffenried, JJ., concur.