Rutherford v. Cowling
Supreme Court of Alabama
Appeal from Circuit Court, Elmore County; Leon McCord, Judge. Assumpsit by E. M. Cowling against O D. Rutherford. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. . The action was upon the common counts. The defense was payment and the general issue.
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Appeal from Circuit Court, Elmore County; Leon McCord, Judge. Assumpsit by E. M. Cowling against O D. Rutherford. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 450. . The action was upon the common counts. The defense was payment and the general issue. The proof showed for plaintiff an agreement for the use of a right of way over plaintiff’s land, at the sum of $75 for the first year and $60 for the succeeding year. The evidence for defendant tended to show that there was no fixed agreement as to price.
1Opinion of the CourtAnderson, C. J.
There was proof from which the trial court could infer the existence of a special contract and that nothing remained for either party thereto to do, other than for the defendant to pay for the use of the right of way, and the plaintiff co-uld have declared upon a breach or upon the common counts as for the money so due. Elrod Lumber Co. v. Moore, 186 Ala. 430, 65 South. 175. It was open for the trial court to find, from the plaintiff’s evidence, a special contract for a sum certain for the use of the right of way, and that the sum equal-led the amount of the judgment rendered, after allowing…
2Cases cited5 opinions
- Finney v. Studebaker Corp. of AmericaSupreme Court of Alabama · 1916
- Burgess v. American Mortgage Co.Supreme Court of Alabama · 1896
- Elrod Lumber Co. v. MooreSupreme Court of Alabama · 1913
- Stringfellow v. Curry & Co.Supreme Court of Alabama · 1884
- Lankford v. GreenSupreme Court of Alabama · 1875
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