McCormick v. Badham
Supreme Court of Alabama
Appeal from Circuit Court, Jefferson County; Romain Boyd, Judge. Action by A. H. McCormick against H. L. Badham in assumpsit. Judgment for defendant, and plaintiff appeals. The third, fourth, fifth, sixth, and seventh counts were the common counts.
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Appeal from Circuit Court, Jefferson County; Romain Boyd, Judge. Action by A. H. McCormick against H. L. Badham in assumpsit. Judgment for defendant, and plaintiff appeals. The third, fourth, fifth, sixth, and seventh counts were the common counts. The thirteenth count was as follows: The plaintiff further claims of the defendant the sum of $10,000 as damages for a breach of contract, for that whereas on, to wit, the 7th day of July, 1904, the plaintiff and defendant entered into a written contract in words and figures as follows: “State of Alabama, Jefferson County, “This agreement made and…
1Opinion
On Rehearing.
2Per curiam
[17] The common counts for money due by account on, to wit, July 7, 1907, and special counts 13 and 14, present the controverted issues on last appeal. The right to declare on common counts and under the terms of a contract is stated in Martin v. Massie, 127 Ala. 504, 508, 509, 29 South. 31, as follows:
“The general rule is that where there is an express contract, the plaintiff cannot resort to an implied one, hut must recover, if at all, on the express agreement. ‘An exception to the. rule, however, is that he may recover on the common counts, although the evidence discloses a…
3Cases cited13 opinions
- Russell v. BushSupreme Court of Alabama · 1916
- Lowy v. RosengrantSupreme Court of Alabama · 1916
- Martin v. MassieSupreme Court of Alabama · 1900
- Jos. Joseph. & Bros. v. Hoffman & McNeillSupreme Court of Alabama · 1911
- Moundville Lumber Co. v. WarrenSupreme Court of Alabama · 1919
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