The foregoing observations are limited to Counts B, E, F and G. In Count H it is averred that the defendant on, towit, September 10, 1939, acting by and through its servants, agents or employees, who at the time and on the occasion were acting within the line and scope of their employment, in compliance with the terms of that certain contract, which was in writing, entered into and existing by and between the defendant Jefferson County Bldg. and Loan Association and the plaintiff's husband, William Green, copy of which contract is thereto annexed and marked as Exhibit B and is to be considered a part of this count, undertook to repair said porch in replacing the banister which, prior to the execution of the said attempted repairs was safe and secure, which they removed to replace the rotten sills, so negligently conducted themselves in replacing said banister that it became and was weak and insecure and unsafe for use and as a proximate consequence thereof the "said banister broke or gave way with the plaintiff while *Page 554 she was rightfully and lawfully using the same on said day, and as a proximate result thereof plaintiff was precipitated from the porch to the ground, that is, she was caused to fall, and she suffered the injuries and damages complained of, * * *."
Where the defendant having covenanted to repair as indicated, the same must be done in a due and workmanlike manner that will not render the so repaired premises unsafe for the occupant thereof, his family or invitees. The demurrer was not well assigned to this count.
Application for rehearing overruled.
GARDNER, C. J., and BROWN and FOSTER, JJ., concur.