Cleveland v. Towle

SAXRE, J.

Adopting the statement of the case by the Court of Appeals:

“The plaintiff’s action is stated in four counts. The first seeks a recovery for the breach of an agreement to employ plaintiff as a bookkeeper at $100 per month, and the other counts are the common counts claiming for an account, account stated, and for work and labor done.”

Plaintiff had judgment.

The Court of Appeals held that defendant’s demurrer to the first count was erroneously overruled. The correctness of this judgment is not questioned. McGowin Lumber Co. v. Camp Lumber Co., 192 Ala. 35 , 68 So. 263 .

The question sought to be raised by this application is whether the ruling of the trial court in favor of the first count of the complaint should be held for error without injury. On this point the Court of Appeals says:

“In this case there was no evidence that plaintiff had performed the labor called for by the agreement, and hence the verdict of the jury could not be referred to the common counts for work and labor done. We have then a verdict responding alone to a defective count and hence we must hold that the error in overruling the demurrer was not without injury.”

We can only state our inability to agree with the Court of Appeals in respect of its proposition that in a case like this there can be no recovery on the common counts where the labor called for by the employment has not been performed. • The law of this court is that if the plaintiff had a contract for services to be performed and was discharged without fault on his part, the fact that thereafter he held himself in readiness to perform is tantamount to full performance on his part, leaving nothing to be done on either part save payment of the stipulated wage, and entitles plaintiff to recover on the common counts. Warten Cotton Co. v. McGuire, 206 Ala. 469 , 91 So. 308 ; Holloway v. Talbot, 70 Ala. 389 ; Snedicor v. Leachman, 10 Ala. 330 ; Sprague v. Morgan, 7 Ala. 952 . In Wilkinson v. Black, 80 Ala. 332 , it was said that a tender and readiness to perform is regarded as tantamount to actual performance, and entitling the plaintiff in all proper cases to a recovery of *130 the; contract price as the abs'olute measure of his damages.

Whether the ruling of the Court of Appeals may be justified on the consideration discussed in the brief for appellant we may not say, for, in reviewing that court by certiorari, it has been determined that this court will not indulge any inquiry into the facts. Postal Telegraph Co. v. Minderhout, 195 Ala. 420 , 71 So. 91 . Numerous decisions to this effect might be cited.

The Court of Appeals is in error, and its judgment will be reversed and the cause remanded in order that the stated law may be properly applied.

Writ of certiorari granted; reversed and remanded.

All the Justices concur.