Newton v. Brook
Supreme Court of Alabama
Appeal from, the Circuit Court of Jefferson. • Tried before the Hon. A. A. Coleman. This was an action brought by the appellee, Nannie S. Brook, against tfie appellants, as: partners doing business under tfie firm name of Warner-Smiley C01. The complaint was as follows: “Tfie plaintiff claims of tfie defendants twenty-five thousand dollars damages, for that on or before the 16th' day of February, 1900, tfie defendants were engaged in the undertaking business in Birmingham.,…
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Appeal from, the Circuit Court of Jefferson. • Tried before the Hon. A. A. Coleman. This was an action brought by the appellee, Nannie S. Brook, against tfie appellants, as: partners doing business under tfie firm name of Warner-Smiley C01. The complaint was as follows: “Tfie plaintiff claims of tfie defendants twenty-five thousand dollars damages, for that on or before the 16th' day of February, 1900, tfie defendants were engaged in the undertaking business in Birmingham., Ala., ancl as suck were holding themselves out for the preparation of bodies for burial and shipment; that on said 16th…
1Opinion of the CourtTyson, J.
Counsel agree that the complaint is in case and not in assumpsit; that its gravamen is for a *272breach of duty growing out of a contract. It counts, as we will show -when we consider its averments-, not upon a misfeasance or malfeasance of the defendants, but a non-feasance. The contract attempted to be alleged as an inducement out of which the supposed duty arose, is shown by the evidence to have been oral. Independent of the evidence, however, and looking alone to the averments of the complaint, applying the rule of construing pleading most strongly against .the. pleader, we are constrained to…
2Cases cited3 opinions
- Moseley v. WilkinsonSupreme Court of Alabama · 1854
- Jones v. PowellSupreme Court of Alabama · 1849
- Maury v. OliveSupreme Court of Alabama · 1830
3Cited by18 opinions
- Moore v. WilliamsonSupreme Court of Alabama · 1925
- Prudential Casualty Co. v. KerrSupreme Court of Alabama · 1918
- Adler v. MillerSupreme Court of Alabama · 1928
- Eidson v. Johns-Ridout's Chapels, Inc.Supreme Court of Alabama · 1987
- Alabama Power Company v. ThompsonSupreme Court of Alabama · 1965
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