Kirkland v. Oates
Supreme Court of Alabama
Appeal from the Circuit Court of Dallas. Tried before the Hon. Andrew B. Moore. Assumpsit, on the common counts, for work and labor done, by Henry M. Oates against Perry Kirkland ; pleas, non as-sumpsit, payment, set-off, and failure of consideration.
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Appeal from the Circuit Court of Dallas. Tried before the Hon. Andrew B. Moore. Assumpsit, on the common counts, for work and labor done, by Henry M. Oates against Perry Kirkland ; pleas, non as-sumpsit, payment, set-off, and failure of consideration. It appears from the bill of exceptions, that there was a special contract entered into between the parties, by which Oates agreed to build the dwelling-house according to the direction of Kirkland, but, after progressing to a considerable extent with the work, he had violated the contract, in the absence of Kirkland, in the matter of some…
1Opinion of the Court
CHILTON, C. J. —
A severable contract is one the consideration of which is, by its terms, susceptible of apportionment on either side, so as to correspond to the unascertained consideration on the other side ; whilst an entire contract is one the consideration of which is entire on both sides, requiring the complete fulfilment of the promise by either ■ as a con* dition precedent to the fulfilment of any part of tfie promise by the other. — Story on Cont., §§ 21, 22, (3d ed.)
In the case before us, the contract was manifestly entire, and Oates could not have recovered upon it without averring…
2Cases cited5 opinions
- Costillo v. ThompsonSupreme Court of Alabama · 1846
- Merriweather v. TaylorSupreme Court of Alabama · 1849
- Henderson v. MabrySupreme Court of Alabama · 1848
- Jones v. DavisSupreme Court of Alabama · 1841
- Hawkins v. GilbertSupreme Court of Alabama · 1851
3Cited by20 opinions
- South & North Ala. Railroad v. McLendonSupreme Court of Alabama · 1879
- Carter v. ChambersSupreme Court of Alabama · 1885
- Elliott v. HowisonSupreme Court of Alabama · 1906
- Russell v. BushSupreme Court of Alabama · 1916
- Lowy v. RosengrantSupreme Court of Alabama · 1916
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