The Montgomery advertiser., 1904-10-30

plea setting up fraudulent misrepre- sentation and failure of consideration In an action upon . promissory note, where the defendant by special plea, ayers that the note was given Tor the purchase price of certain whiskey sold by plaintiff to the defendant who was in the retail liquor business; that said sale was made through piaintiffs agent who represented to the defend- ant that he knew what kind of whis- key the defendants trade would pur- chase; that the whislxey he proposed to sell to him would meet the demands of the defendants trade; that the de- fe endant did not know the. character of the whiskey proposed to be sold. but relying entirely upon the representa- tion of pIaintiff's agent. purchased the whiskey and gave the note sued on. and that said representations of plaint- iff's agent were false; that the whiskey which, was delivered under said pur- chase did not meet the wants of de- fendant's trade, as stated by said agent: that the defendant was unable to sell the same, and that therefore the consideration for which the note was given had faiied.--such plea is insunncient as setting up fraudulent misrepresentation. or as presenting the defense of failure of consideration.
 3. Same; suflloienoy of replication to plea setting up void contract--ln an action upon a promissory note where the defendant by special plea. sets up the defense that the note sued on was an Alabama contract, and was given for the purchase price of whiskey, and that the same was void. for the reason the plaintiff had not paid for and ob- tained a license as required by law. a replication to such plea which alleges in substance that the whiskey when sold by plaintiffs agent, was not in the State of Alabama, but was in the State of Kentucky, and was to be de- livered to the defendant in that State some time in the future. is a sufficient reply to said plea, and shows that said transaction was not in violation of the statute which provides that all sales of liquor are void if the seller has not taken out & license. Code. Sec. s534.)
 Affirmed.
 Opinion by Dowdell. J.
 KIRBY vs. FORBES EFT AL. Action upon a bond, to contest a claim
 of exemption.--Appeal from the Cir
 cult Court of Marshall.
 1. Action for breach of bond giv- en to contest claim of exemption; suf- ficiency of averment of breach.-In
 
 the breach of bond given for the pur- pose of contesting q claim of exemp- ton. which bond is conditioned upon the contestant prosecuting "said con test to effect or failing therein. will pay the defendant all such costs and damages as he may sustain" the as- signments of the breach of said bond in the complaint which do not aver that defendant failed to prosecute the contest to effect, are insufficient and render the complaint subject to de- murreP.
 2. Same. same: proper clements of damage.-In such an action where an assignment of the breach of the bond ayers that the defendants failed to prosecute the contest to effect, and plaintiff was damaged in that he was forced to employ an attorney to make his defense in said contest, and in or- der to secure the services of said at- torney he became legally bonded to pay therefor a certain stipulated amount, which amount defendants failed to pay plaintiff as damages sus- tained by him. such assignment of breach is sufficient. and constitutes a claim for a legitimate clement o4 damages.
 3. Same; same; .same.--In such a case, an assignment of breach where in the plaintiff claims damages for ex- pense in attending court and for loss of time from his regular employment In so doing, and for hotel bills incurr- ed thereby, asserts claim for legit- innate element of damage.
 (. Same; same.-In such an action an assignment in the complaint which does not aver any damage for breach of said bond is insuficient.
 Reversed and remanded.
 Opinion by Haralson