[Florence Gas, Electric Light and Power Co. v. Hanby, Receiver, &c.] and to complete all its outstanding contracts, which said corporation had made for the erection and construction of electric plants; and the bill shows that said appointment was unauthorized, illegal, null and void, and that no subsequent action of the court could render the appointment of said Hanby valid, or vest in him the power and authority claimed. 2d. That as the appointment of said Hanby as receiver was made immediately upon the filing of the bill praying for dissolution, and before a decree of dissolution of the corporation was rendered, the said appointment was illegal, unauthorized by the statute under which the petition to dissolve the corporation was filed, and that, therefore, said Hanby was not legally receiver of said corporation, and was not authorized to institute the present suit. 3d. Said bill shows that, on the filing of the bill for dissolution of the corporation, the said Hanby was appointed the receiver of said corporation with power to collect all the debts and to complete all outstanding contracts of said company that it may have made for the erection and construction of electric plants, &c., and that upon the decree rendered dissolving the corporation that said Hanby's receivership and his powers thereunder contained were continued. This was not authorized under the statute by virtue of which the original bill for dissolution was filed, and his appointment was, therefore, null and void, and the court could not by subsequent decree legalize its action. 4th. The contract between the Southern District Telegraph & Electric Co. and the respondent, was that the plant contracted to be erected should be completed as soon as possible, and the bill shows that said plant was not erected at the time said Hanby was appointed receiver-more than a year after said contract was made; and said bill fails to show that said plant could not have been completed sooner, or that the Southern Dist. Tel. & Elec. Co. was not guilty of unreasonable delay in completing the said contract. 5th. Under the said contract above mentioned the plant was to be completed as soon as possible, and the bill fails to show any reasonable cause why said plant was not erected or completed before the dissolution of the Southern Dist. Tel. & Elec. Co., or the appointment of said Hanby as its receiver. 6th. Said bill shows that the Southern District Telegraph & Electric Co. did not erect and complete said [Florence Gas, Electric Light and Power Co. v. Hanby, Receiver, &c.] electric plant as they contracted to do with the respondents, as shown by the contract, and that, therefore, the defendant was released from all obligations arising under said contract by the inexcusable delay and negligence of said corporation to comply with its contract. 7th. The bill shows that the Southern District Telegraph & Electric Co. went into the hands of a receiver more than a year after it had entered into a contract with the defendant, and that at the date of the appointment of the receiver it had failed to comply with said contract, and the bill fails to show any satisfactory legal reason or excuse for its failure to comply with said contract, or that it could not, by ordinary diligence, have completed said contract before the expiration of one year and before the appointment of a receiver. 8th. The bill shows that Hanby was appointed receiver of the Southern District Telegraph & Electric Co. upon a bill being filed under sections 1683 et seq. of the Code of Alabama. Under the provisions of said statute the receiver could not be vested with power to complete the unexecuted contracts of the corporations, and the decree of the court vesting in him such power was null and void, and, therefore, the receiver had no authority to complete said contract made by the defendant. 9th. The said bill shows that at the time of the dissolution of the Southern District Telegraph & Electric Company it was involved, and that it went into the hands of a receiver on account of its inability to collect its debts and the stringency of the money market, and that it had no means to complete its contract with the defendant. 10th. The said bill does not show that the said Southern District Telegraph & Electric Company has ever offered or proposed by its officers or agents, or any one authorized to represent it, to complete its contract with the defendant, and that S. M. Hanby had no power, by virtue of his appointment as receiver, to complete said contract. 11th. The bill shows that the said Southern District Telegraph & Electric Co. in its contract with the defendant contracted to pay at once the money due by the defendant to the Westinghouse Electric Company for the purchase of its plant, and the debts then owed by the defendant, and the bill fails to show or allege that the said Southern District Telegraph & Electric Co., or its receiver, has paid said moneys as it contracted to do, and, therefore, the receiver [Florence Gas, Electric Light and Power Co. v. Hanby, Receiver, &c.] is not in a position to ask for specific enforcement of the contract with the defendant. 12th. Under the contract with the defendant the Southern District Tel. & Elec. Co. was to pay the amount due the Westinghouse Electric Co., and the debts due by the defendant, which the bill shows were due at the time of the execution of said contract, but the bill fails to allege said payments were made by said Southern District Tel. & Elec. Co., or its receiver. 13th. The bill shows that the purpose of the Southern District Tel. & Elec. Co. agreeing to pay said moneys due by the defendant was to enable the defendant to pay and satisfy a mortgage due by it on its plant held by the Westinghouse Elec. Co. and the debts pressing at the time, so that it could execute a deed of trust on all of its property to secure bonds which were to be issued and delivered to said Southern District & Electric Co., as required in the contract, and that the lifting of the mortgage held by the Westinghouse Electric Co. on the plant of the defendant was a condition precedent to the issuance of said bonds and to the delivery of them to the Southern District Telegraph & Electric Co., and the bill fails to show that this condition precedent has been complied with. 14th. The bill presents inconsistent alternative claims for relief, in that it prays for the enforcement of a lien in favor of the complainant, and also for the specific performance of the contract set forth in an exhibit to the bill. 16th. Neither said bill nor the exhibits thereto allege or show when the sum claimed to be due by the defendant to the Southern District Tel. & Elec. Co. became due and payable. 17th. The bill fails to show that the plaintiff filed its claim or lien in the probate office of Lauderdale county, claiming a lien on the property of the defendant, within six months after the indebtedness accrued. 18th. The bill shows that both the Southern District Telegraph & Electric Co. and S. M. Hanby, as receiver of said company, filed in the office of the probate court of Lauderdale county, Alabama, statements in writing claiming liens on the property of the defendant. 19th. Neither said bill nor the exhibits thereto show when the indebtedness claimed against the defendant accrued. 20th. The averments of the bill and the exhibits thereto show that complainant has no lien either as a mechanic or a material-man as provided by law. 21st. The bill and exhibits show [Florence Gas, Electric Light and Power Co. v. Hanby, Receiver, &c.] that the account claimed to be due to complainant was due more than six months before the filing in the office of the probate court of Lauderdale county the claims and accounts, preparatory for the enforcement of the lien. 22d. The complainant has a plain, adequate and complete remedy at law. On the submission of the cause on the demurrers to the bill, the chancellor sustained the 16th and 17th grounds, and overruled all the other grounds of demurrer. The defendant now brings this appeal, and assignas error the decree of the chancellor overruling the several grounds of demurrer. EMMET O'NEAL, for appellant.-There was no excuse shown in the bill for the long delay on the part of the Southern District Telegraph & Electric Company in not "completing the electric light plant for the defendant. In that contract time was made the essence of the contract by the defendant. The insolvency and the dissolution of the construction company was no sufficient excuse for the non-performance of the contract.-Jones v. Anderson, 82 Ala. 302, 2 So. Rep. 911; Smith v. Brady, 72 Am. Dec. 442; Mizell v. Burnett, 69 Am. Dec. 745. The construction company having violated its contract, the defendant was authorized to rescind the same.-Hewlett v. Alexander, 87 Ala. 193, 6 So. Rep. 49. The receiver, who is the complainant in this case, was not in a position to ask for the specific performance of the contract. The defendant was not required by the contract to issue bonds until the mortgage given by it to third parties had been satisfied by the receiver's company, and the other debts had been paid. The construction company failed to perform its part of the contract, and rendered the specific performance of the contract by the defendant corporation impossible, nor did the bill contain averments that the said debts had been paid, or any averment offering to pay said debts. A fundamental rule of equity pleading requires that every fact essential to the complainant's right to maintain a bill must be stated therein.-Christian v. Amer. Freehold Land Morty. Co., 89 Ala. 198, 7 So. Rep. 427. The bill does not show that it was within the authorized powers of the Southern District Telegraph & Electric Company to construct the electric plant, which it agreed to build for the defendant. If the contract was ultra vires, then no right of action can be maintained.— [Florence Gas, Electric Light and Power Co. v. Hanby, Receiver, &c.] Chewacla Lime Works v. Dismukes, 87 Ala. 347, 6 So. Rep. 122; Eufaula v. McNabb, 67 Ala. 588; City Council v. Montgomery & Wetumpka Road Co., 31 Ala. 76. MOUNTJOY & TOMLINSON, contra.-(1.) The appointment of a receiver in a pending suit, where the court has jurisdiction of the parties and subject matter, can not be collaterally assailed.-Comer v. Bray, 83 Ala. 217, 3 So. Rep. 554; High on Receivers, § 225; Wait on Insolvent Corporations, § 245; Keokuk Northern Line P. Co. v. Davidson, 13 Mo. App. 561; Attorney Gen'l v. Guardian Mut. Life Ins. Co., 77 N. Y. 272; Richard v. Peoples 81 Ill. 551. (2.) Without the aid of statute, the chancery court has the power to appoint a receiver pending litigation. Myer v. Johnston, 53 Ala. 237. (3.) The unauthorized appointment of a receiver may be cured by subsequent legal apppointment.-In re Stonebridge, 13 N. Y. 770. (4.) The term "as soon as possible," in a contract, is considered by courts to mean within a reasonable time.-Hinds v. Kellogg, 13 N. Y. Sup. 922; Hydraulic Co. v. McHaiffie, 29 Moak, Eng. R. 102; Benjamin on Sales (Bennet's Ed.), § 687; Arthur v. Wright, 10 N. Y. Sup. 368. (5.) A chancery courthas authority to empower a receiver to carry on the business where such course is necessary to protect and preserve the property.-Wait on Insolv. Corp., § 214; Pond v. Cook, 45 Conn. 30; Blake Crusher Co. v. New Haven, 46 Conn. 473; Cooke v. Town of Orange, 48 Conn. 409. (6.) If the part of a contract to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to to be performed, or is left to be implied by law, such a contract will generally be held to be severable.-3 Am. & Eng. Encyc. of Law, p. 917, and note; Lucesco Oil Co. v. Brewer, 66 Pa. St. 351; Quigley v. DeHaas, 82 Pa. St. 267, 273; Scott v. Kittanning Coal Co., 89 Pa. St. 231; Johnson v. Johnson, 3 B. & P. 162; Robinson r. Green, 3 Met. (Mass.) 159; Mayfield v. Wadsley, 3 B. & C. 357; Mayor v. Pyne, 3 Bing. 285; Perkins v. Hart, 11 Wheat. (U. S.) 237, 251; Withers v. Reynolds, 2 B. & A. 882; Sickles v. Patterson, 14 Wend. (N. Y.) 257; McNight v. Dunlop, 4 Barb. (N. Y.) 36, 47; Snook v. Fries, 19 Barb. (N. Y.) 313; Carleton v. Woods, 8 Foster (N. H.) 290; Robinson v. Snyder, 25 Pa. St. 203; 3 Amer. & Eng. Encyc of Law, p. 925; Snow v. |