Patterson & Edey Lumber Co. v. Daniels
Supreme Court of Alabama
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge. Action by William Daniels against the Patterson & Edey Lumber Company for breach of contract and in assumpsit. ‘Judgment for plaintiff, and defendant appeals.
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Appeal from Circuit Court, Mobile County; Saffold Berney, Judge. Action by William Daniels against the Patterson & Edey Lumber Company for breach of contract and in assumpsit. ‘Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Count 2 of the complaint is upon a contract evidenced by defendant’s written order to plaintiff as follows: “Please cut the following * * * piling and ship as directed below, noting carefully all instructions, terms and conditions. * * * Order to be shipped complete, thirty days or sooner (extended to May,…
1Opinion of the CourtSomeryille, J.
[1] Plaintiff’s replication sets up an alteration in the terms of the contract of sale which is a departure from the complaint, rendering it demurrable on that ground. If the original contract was altered by a contractual agreement between the parties which affected their obligations thereunder, that alteration should have been averred in the complaint, or should have' been supplied by amendment. It could not be supplied by replication. Gates v. O’Gara, 145 Ala. 665, 39 South. 729; Ala. Grocery Co. v. Bank, 158 Ala. 143, 48 South. 340, 132 Am. St. Rep. 18.
[2] The contract, as here sued on,…
2Cases cited5 opinions
- Alabama Grocery Co. v. 1st National BankSupreme Court of Alabama · 1908
- H. Curjel & Co. v. Hallett Mfg. Co.Supreme Court of Alabama · 1916
- Wheeler v. ClevelandSupreme Court of Alabama · 1910
- Hopkinsville Milling Co. v. GwinSupreme Court of Alabama · 1912
- Gate City Cotton Mills v. Rosenau Hosiery MillsSupreme Court of Alabama · 1909
3Cited by7 opinions
- Holt v. City of MontgomerySupreme Court of Alabama · 1924
- Kiley v. Pacific Mut. Life Ins. Co.Supreme Court of Alabama · 1939
- Loper v. GanguetSupreme Court of Alabama · 1948
- Gulf States Creosoting Co. v. JonesSupreme Court of Alabama · 1941
- Robert L. Martin v. Angeline Caudell Glass.Court of Civil Appeals of Alabama · 2011
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