Duffey v. Southern Mfg. Co.

It may be that the allegations of count 1 in respect of the circumstances which interfered with plaintiff's performance of the contract between the parties — defendant's wrong in ordering plaintiff to cease his efforts to perform the contract and threatening to prosecute plaintiff for trespass if he went upon the land where the contract was to be performed — relieved plaintiff of the necessity of alleging that he was ready, able, and willing to go on with the contract. The court so held, and appellant is not in a position to complain. But the other counts are not saved by any such consideration. They allege breaches of the contract by defendant, that is, they allege (counts 2 and 3) that defendant failed to pay according to agreement, or (count 4) that defendant ordered plaintiff to cease cutting logs till further notice and failed to notify him to begin again to cut. But, for all that, plaintiff was not ready or able to proceed with the work called for by the contract. A party seeking to recover as for the breach of a contract containing mutual and dependent covenants or stipulations must aver and prove that he was able, ready, and willing to perform, as well as that defendant failed to perform on his part. Moss v. King, 186 Ala. 475, 65 So. 180; 3 Mich. Dig. p. 387, § 236. Reading these counts most strongly against the pleader, the demurrers were properly sustained.

Affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.