Smythe v. Dothan F. & M. Co.
Supreme Court of Alabama
Appeal from Houston. Circuit Court. Heard before Hon. H. A. Pearce. Assumpsit by tbe Dothan Foundry and Machine Company against E. M. Smythe. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrers to count 1. — Kelly v. Burke, 132 Ala. 235. The complaint declared on a joint contract and the proof disclosed that if any account was made it was made with J. M. Smythe alone.
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Appeal from Houston. Circuit Court. Heard before Hon. H. A. Pearce. Assumpsit by tbe Dothan Foundry and Machine Company against E. M. Smythe. Judgment for plaintiff and defendant appeals. The court erred in overruling demurrers to count 1. — Kelly v. Burke, 132 Ala. 235. The complaint declared on a joint contract and the proof disclosed that if any account was made it was made with J. M. Smythe alone. This constituted a fatal variance. — Lord v. Calhoun, 50 South. 402; Garrison v. Hawkins L. Co., Ill Ala. 311; McAnally v. Hcmkins L. Co., 109 Ala. 397; Gamble v; Kellam, 97 Ala. 677. No brief…
1Opinion of the CourtSimpson, J.
This suit is by the appellee against the appellant. The first assignment of error is to the *254overruling of defendant’s demurrer to the first count of the complaint. The count is in these words: “The plaintiff claims of the defendant $202.28, balance due on account, on, to wit, the 1st day of August, 1908.” The ground of demurrer is that the count does not aver by whom the account is due. By reference to the form laid down in the Code (Code 1907, p. 1195, No. 10). it will be noticed that the words “from him,” in the form, are omitted in this count, so that the count does not show whether the…
2Cases cited5 opinions
- Gamble v. KellumSupreme Court of Alabama · 1892
- Garrison v. Hawkins-Lumber Co.Supreme Court of Alabama · 1895
- Kelly v. BurkeSupreme Court of Alabama · 1902
- Lord v. CalhounSupreme Court of Alabama · 1909
- McCrary v. BrownSupreme Court of Alabama · 1908
3Cited by18 opinions
- Denson v. Kirkpatrick Drilling Co.Supreme Court of Alabama · 1932
- Turner v. BlantonSupreme Court of Alabama · 1965
- Rentz v. Live Oak BankSupreme Court of Florida · 1911
- Newell Contracting Co. v. GlennSupreme Court of Alabama · 1926
- Industrial Sav. Bank v. GreenwaldSupreme Court of Alabama · 1935
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