Brumby v. Smith
Supreme Court of Alabama
Error to the Circuit Court of Montgomery county» THIS was an action of assumpsit commenced in the- Court below, by the defendant in error against the plaintiff in error.. The declaration contains a special count upon an agreement between the parties, and the common counts. The defendant below demurred to the special count of the declaration, which being overruled by the Court, the jury under the general issue, found a verdict for the plaintiff below..
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Error to the Circuit Court of Montgomery county» THIS was an action of assumpsit commenced in the- Court below, by the defendant in error against the plaintiff in error.. The declaration contains a special count upon an agreement between the parties, and the common counts. The defendant below demurred to the special count of the declaration, which being overruled by the Court, the jury under the general issue, found a verdict for the plaintiff below.. Pending the trial, a bill of exceptions was taken to the opinion of the Court, by which it appears that an agreement between the parties in…
1Opinion of the CourtOrmond, J.
As no objection was made to the judgment of the Court overruling the demurrer to the first count, we havo not thought it necessary to examine it.
It is certainly true, that when by the terms of a contract, a given duty is to be performed, the performance is a condition precedent, and although performance may be prevented by inevitable accident, a pro rata compensation cannot be recovered for the services actually performed. Of this principle, the case of Cutter v. Powell, 6 Term Rep. 320, furnishes a full illustration.
*125The facts were, that Cutter shipped on board a vessel, as second mate, and…
2Cited by16 opinions
- Partridge v. ForsythSupreme Court of Alabama · 1856
- Cook v. McCabeWisconsin Supreme Court · 1881
- Krause v. Brd. of Trustees of the School CrothersvilleIndiana Supreme Court · 1904
- Powell v. Dayton, Sheridan & Grande Ronde R. R.Oregon Supreme Court · 1885
- Siegel, Cooper & Co. v. Eaton & Prince Co.Illinois Supreme Court · 1896
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