Moore, Kirkland & Co. v. Westinghouse Electric & Manufacturing Co.
Supreme Court of Alabama
Appeal from tbe Circuit Court of Montgomery. Tried before tbe Hon. John R. Tyson. Tbis was an action of assumpsit brought by tbe appellee against “J. W. Moore, A. Kirkland and McD. Cain, partners, under tbe name of Moore, Kirkland & Co.,” to recover tbe price of an electric light plant sold by plaintiff to defendants. Tbe complaint counted on the common counts.
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Appeal from tbe Circuit Court of Montgomery. Tried before tbe Hon. John R. Tyson. Tbis was an action of assumpsit brought by tbe appellee against “J. W. Moore, A. Kirkland and McD. Cain, partners, under tbe name of Moore, Kirkland & Co.,” to recover tbe price of an electric light plant sold by plaintiff to defendants. Tbe complaint counted on the common counts. To tbe action tbe following pleas were filed: “1. Comes tbe defendant Cain and for answer to tbe complaint says that he denies each and every allegation therein contained. “2. And for further plea to said complaint, byway of…
1Opinion of the CourtHead, J.
The demurrer to the second plea was properly sustained. It is clear that under the facts as they are very fully set out in the plea, it is not shown that the defendants sustained any loss by reason of the plant not being operated during the forty-two hours. For aught that is averred to the contrary, the operation of the plant for nine instead of eleven hours, per day, resulted in no actual loss or damage to the defendants. Indeed, they may have saved by it. The court can indulge no presumption one way or the other. It.was upon the defendants to aver and prove loss. The wages paid to the…
2Cited by3 opinions
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- Drennen Motor Car Co. v. SmithSupreme Court of Alabama · 1935