Terrell v. Nelson

ANDERSON, J.

It has been repeatedly held by this court that if a complaint avers a contract between the plaintiff and defendant, and a breach by the defendant, the plaintiff is entitled to recover at least nominal damages. If the complaint states a cause of action, and shoAvs a right to recover nominal damages, but also contains a claim for nonrecoverable damages, the point that it claims nonrecoverable damages cannot be tested by a demurrer, but should be raised by motion to strike, objections to the evidence, or special instruc *599 tions to the jury. —Treadwell v. Tillis, 108 Ala. 262 , 18 South. 886 .

The breach charged in the second count of the complaint was a refusal of the defendants to receive or purchase the stone; but said count fails to aver an ability, readiness, or willingness on the part of the plaintiff to furnish the stone within the time required by the contract, or that the stone was delivered thereunder. He who seeks to recover for the breach of a contract must aver an ability, readiness, or willingness to comply with same, or a legal excuse for not doing so; that is to say, he must negative a previous breach on his own part. Counts 1, 8, and 1, do not charge a refusal to receive the stone, but set up a repudiation by the defendants, in that they notified the plaintiff, before he was ready to deliver said stone, that they would not’ receive or purchase same. It is, no doubt, a sound proposition of law that if the defendant notified the plaintiff that they Avould not receive or purchase the stone in case he delivered it, and this Avas done Avithin the time he had to deliver under the terms of the contract, he (the plaintiff) would have the right to rely upon the defendants’ first breach, and would be excused from delivering the stone as a condition precedent to a recovery. — 9 Cyc. 688. In order, however, for the defendants’ notification that they Avould not receive or purchase the stone to operate as such a breach on their part as Avould relieve the plaintiff of any further attempt to comply Avith said contract, the notification must have been made Avhen the obligation to receive the stone existed. In other words, for aught that appears from the complaint, the defendants’ notification may have been made after the expiration of the time within which the stone was to have been delivered, and after the plaintiff Avas in default in this respect, and the de *600 fendants had the right to notify the plaintiff that they would not take the stone, if he had made default as to the time of delivery. The complaint avers that the notification was ' given the plaintiff before he was “ready” to deliver the stone, but does not charge that it was given during the time within which he had to deliver the same, and does not, therefore, negative a previous breach of the contract by the plaintiff. The plaintiff may not have been ready to deliver the stone until after the expiration of the time within'which he could do so. Each count of the complaint was subject to-the defendants’ second ground of demurrer, and which was properly sustained by the trial court. .

The judgment of the circuit court is affirmed.

Affirmed.

All the Justices concur.