[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 36 While counts 5, 6, 7, and 8 are by no means models, we think that the gravamen of the action thereby disclosed is for damages for the breach of an agreement to deliver to the plaintiff a piano of the value of $400. The counts in varying ways, in substance, charge that the Mobile Tribune Company was obligated to the plaintiff for a valuable consideration, to procure for her the piano in question, that said Mobile Tribune Company had, for a valuable consideration, purchased or made an arrangement with the defendant to furnish and deliver the piano pursuant to its order, and that the Mobile Tribune Company, in conformity with the arrangement so made with the plaintiff and the defendant, gave the plaintiff an order for said piano, which was presented to the defendant and accepted, and after so accepting said order and *Page 37 agreeing to deliver the piano to the plaintiff the defendant failed and refused to do so. We do not think that these counts disclose such a want of consideration as would render the defendant's alleged acceptance of the order a nudum pactum, or that they are subject to any of the defendant's other grounds of demurrer.
Count 6 is perhaps faulty for failing to aver a demand for the piano according to the terms of the defendant's acceptance or agreement to deliver same. That is, it charges that the defendant said the order was good, and agreed to deliver the piano, but sets up no reason for not then and there demanding or accepting the piano, nor does it aver an excuse for demanding the same 30 days thereafter.
We discover, however, no infirmities in counts 5, 7, and 8, which render them subject to the defendant's grounds of demurrer, or subject to the criticism pointed out in the opinion of the Court of Appeals.
The writ of certiorari is awarded, and the judgment of the Court of Appeals is reversed, and the cause is remanded to said court for further consideration in conformity with this opinion.
Writ awarded and reversed and remanded.
All the Justices concur.