The Montgomery advertiser., 1907-05-01

destroyed, the party of the second kaft would rive his skin and services in assisting to rebuild 1t. The party of the second part assigned the contract Held, in an action by the assignee of the contract for damages because of the party of the first parts refusal to deliver the lumber, the complaint was not defnurrable on the ground that the agreement contained an obligation for personal services by the assisnor. and the transfer did not relieve him from performing the same. The provisions for personal service having no refer ence to the sale or purchase of the lumber.
 6. Damages; speculative damages: breach of contract. the con- tract required party of ,he first part to. deliver certain described lumber to party of the second part that might be made by party of the first part, ~ hile | operating his mill on other regular orders." no damages could be recovered in an action for damages for brsach of the contract to sell and deliver, based on a prospective operation of the mill, such damages being entirely spec ulative. '. Statute of frauds: contracts not to be performed within the year.-The written contract provided that it should remain in full force for year. but that the second party might at his | option renew 1t for an additional pe- rod of i've years. Held. 1t was not necessary. to save the contract from | the statute of frauds. that the parties | thereto enter into a new writing 8. Pleading; reference by one count | to another The first count contained l an averment of the assignment of the | contract, but the second did not. The second count adopted by reference the | contract set out in the first count. but did not adopt the averment of assign | ment of contract set out In the first count. Held, demurrable for failure to do SO.
 2. Same; striking out matter | Where the recovery is sought for spec l ulative damages. in an action on the contract, and this appears from the | complaint, motion to strike from the I complaint that portion relating to such damages was the proper method of | reaching the objectionable matter; or | the objection may be taken advantage of by requested instructions or by ob- l lection to evidence.
 Appeal from Mobile Circuit Court. Heard before Hon. Samuel B. Browne. | Reversed and remanded. Opinion by | Dowdell. J.
 Tyson, c. J.. Anderson and Mcc1ei- Ian. u. concur.
 DEAN vs THE STATE.
 Violating Section 6s6s. Code of 1sss -(Decided Feb. [, 1907. 4s So. Rep. 2l.)
 1. Street railroads; operation; regu- lation.-section 5Sss. Code 1896. does not apply to street railway g. Criminal law; appeal presump- l tion.--where 1t appeared that the rail- ' hatr a hxy a | railway company. and there was no | affirmative evidence to the contrary, 1t win be presumed on appeal that the road was street railway. and that I the prosecution under the statute was not within the terms of the statute. Appeal from Bessemer City Court.
 Heard before Hon. William Jackson.
 Tyson. c. j.. powdeii and Mcciei- Ian. JJ., concur.
 KINNEY vs STEINER BROTHERS. Bill to Quiet Title.--<Decided Feb. 5.
 1907. 43 So. Rep. 2s.)
 i. Quieting title; pieas.-where the bill Is filed under Section sos. Code 1 1898, the answer should state the re- 1 quirements provided by Section S11. 1 and pleas are not permissible. l ?. Same.--Where the bill alleges the i specific facts required by Section S09. l 1t is unnecessary to traverse such facts. even if permissible Ca point not decided).
 Appeal from Jefferson chancery l Court.
 Heard before Hon. A. H. Benners.
 Affirmed. Opinion by Mcclellan. J.
 Tyson. c. J., Dowdeil and Anderson, u. concur.
 JOHNSON vs. BIRMINGHAM RAIL-
 WAY. LIGHT AND POWER COM PANY.
 1 Action for Damages for Death of Per
 son on Track.-(Decided Feb. 5, | 1907. 4s So. Rep. ss.) l 1. Negligence: pleading: complaint. A complaint which ayers negligence | in general terms and then attempts to set out the particular acts constitutin z l the negligence, without more. is de-
 murrabie, unless the acts so specified. in themselves constitute negligence as a matter of law.
 2. Railroads; persons on track: l death; complaint.--A complaint which | ayers that the cars were negligently 1 operated, in that. though the night | was dark. they did not have a suffi- | cient headlight and were run rapidly.
 which negligence proximately caused intestate's injuries and death, does not contain allegations constituting neeH-
 gence as a matter of law, and is de- l murrabie.
 8. Pleading; pleas; objections; waiv-
 er-where an objection is not raised
 by demurrer that the pleaded acts of contributory negligence were alleged in the alternative, objection thereto is | waived.
 (. Negiigence; discovered peril; con tributory negiigence.--Counts which allege negligence of defendants ser
 wants after the discovery of the peril
 of the intestate. are counts in simple
 negligence. and subject to pleas of
 contributory negligence.
 5. Same; contributory negligence; knowledge of peril-Contributory neg lixence when pleaded as a defense to a complaint which counts on defen- dants negligence after discovery of the peril, must show that the negligent act of the person injured was commit ted by him with knowledge of his peril.
 1 6. Railroads: persons on track; tres l passers: discovery of peril; evidence l The evidence in this case examined and