This was an action brought by appellee (plaintiff in the court below) against appellants (defendants) for damages for the alleged breach of a contract for the sale of a lot in the city of Birmingham. From the verdict and judgment in favor of the plaintiff, the defendants bring this appeal.
The contract, the alleged breach of which was made the basis of the claim, was set out in and made a part of the single count of the complaint which was submitted to the jury. By the terms of this contract, it appears, among other things, that, "Conveyance is to be made by warranty deed." The count seeks to charge defendants with a breach in that they "failed to convey the said described property to the plaintiff, so as to let the said first mortgage become a second mortgage when the construction shall be started on said lot, on demand by the plaintiff." No averment is made that said construction had been started, or that any such demand had been made, and denied or refused, or that defendants refused to accept a mortgage in accordance with the terms of the contract. The count was in our opinion subject to some one or more of the grounds of demurrer interposed, and the trial court erred in overruling same.
There is nothing in the record to show that there was any evidence from which the jury could have inferred that either of the appellants was informed or put upon notice, at the time of the execution of the contract sued upon, that the plaintiff would employ architects prior to the closing of the trade, or that any plans for construction would be purchased by appellee. In fact, the very terms of the contract would seem to repel any such presumption. We therefore hold that the trial court was in error in allowing, over appellants' objection, the evidence as to the employment of the architect, Carlton, and in charging the jury that they could under certain circumstances assess as damages against the appellants such reasonable and necessary sums as the appellee may have become obligated for for architects' plans, etc. Dickerson v. Finley, 158 Ala. 149, 48 So. 548.
What we have said above applies as well to the refusal of written charges 4 and 6 requested by appellants, and we must hold that it was error to refuse each of these charges. A great many other questions were raised on the trial, and the rulings on same have been assigned as error. But some have not been insisted upon in argument here, and some questions have been argued here that were not properly raised and assigned as error. What we have said above seems to dispose of those questions properly brought for our decision.
For the errors indicated, let the judgment be reversed and the cause remanded.
Reversed and remanded. *Page 576