88 Ala. 367 | Ala. | 1889
The order of submission to arbitration in this case was to two named persons, • “they to call in a third man, whose award, when made according to law, to be made the judgment of the court.” No third man was called in, but the two named arbitrators had the parties and their witnesses before them, heard the cause, and rendered their award. No objection was raised on the trial to the failure to call in the third arbitrator. Proceeding to trial before the two without objection, was a waiver of the right to have the third man called in. — Chapman v. Ewing, 78 Ala. 403.
The circumstances shown in the evidence tend very strongly to show that Davis, the proprietor, by moving into the house, did not admit it had been completed according to contract. We make this statement independent of the letters written by Davis; for his testimony, that he moved in before the contractors ceased to work upon the house, does not appear to have been controverted. His own letters, or declarations, however, unless written or spoken contemporaneously with the act of. moving into the house, were not legal evidence he could introduce, for the purpose of rebutting or explaining any legitimate inference that could be drawn from the simple act of moving in. — 1 Brick. Digest 843, §§ 553, 555, 557.
• There is another rule applicable to the correspondence found in this record. Either party to a litigation may give in evidence the admissions or declarations of the opposite party, oral or written, if pertinent to the issue; and when necessary to their proper understanding, may, in case of oral admissions, prove the question or statement, if any, which called them out; or, in case the communication is in writing, may introduce in proof the letter which called out the reply.
Many of the letters found in this record were not admissible under any of the rules stated, above. But the objection was to all the letters indiscriminately, and as made, the arbitrators did not err in overruling it. — 3 Brick. Dig. 443, § 570.
The most important question in this case arises under the sixth article of the written contract. That contract was entered into and signed by both parties before the work was begun. The sixth article, or provision of the contract, stipulates that “no new work done on the premises shall be considered as extra, unless a separate estimate in writing for the same, before its commencement, shall have been submitted by the contractor to the proprietor, and his
It is scarcely necessary to state, that if the substituted materials and workmanship were disallowed, because the agreed change was not reduced to writing and signed, the defendant should not have been allowed a credit for the items which were omitted pursuant to that agreement. To do so, would relieve him of payment, not only for the substituted parts, which we must consider were more desirable, but also from all liability for the omitted parts, which were rendered
Tbe testimony shows that, after the written contract was executed, alterations, both in the materials and workmanship, were orally agreed on between the proprietor and the contractors,' and that such agreement was carried out in the construction of the dwelling. There is no conflict in the testimony, to this extent. As we have already shown, the work done pursuant to this agreement, if sufficiently done, must be accepted and treated as a compliance with the provisions of the written contract which it supplanted. If the substituted work exceeded in value the work omitted, then such excess must be classed as extra, to be considered further on. But the harmonious testimony goes no further than to show there was an agreement to change the plans and specifications in the particulars claimed.
The plaintiffs each testified that, in making the agreement of change, the defendant promised to pay for the increased value of materials and workmanship resulting from the change. The defendant, in his testimony, denied making
The bill of exceptions sets forth, that defendant moved before the arbitrators to exclude from their consideration all evidence of the alleged work done under the oral agreement, and defendant’s promises and instructions in relation thereto; which motion the arbitrators sustained, and plaintiffs excepted. This ruling was manifestly an error, under the rule stated above. To the extent materials and work were furnished under the oral agreement in substitution for parts omitted, if properly done and completed, this was, pro tanto, a compliance with their contract; and for this reason the testimony should have been considered and weighed by the arbitrators. Was the ruling justifiable, even on the inquiry of extra charges in excess of the agreed price for the building ?
The case of Abbott v. Gatch, 13 Md. 314 — s. c., 71 Amer. Dec. 635 — is relied on, as supporting the affirmative of this inquiry. The written contract in that case provided, that there should be “no extra charges . . . unless a written agreement be made and attached to the contract.” In that case, alterations were made, by the consent of the contracting parties, and the contractor sued to recover extra compensation for alleged extra work done pursuant to oral instructions given by the employer. There was no testimony tending to show any promise made to pay for extra work. The inference is, that none was made. The court, in its opinion, said: “The claim is placed on the ground, that the defendant interfered with the work, by directing or authorizing these departures from the original design, and in some instances against the opinion of the plaintiff.” The action was “for work done and materials furnished.” It was ruled, that the plaintiff had no cause of action; and reasons were given for the ruling, which are, to some extent, applicable-to this case. The opinion of the court might have been placed on a different ground — namely, that inasmuch as the contractor did not exact a promise of payment for the departure, as for extra work, and did not inform the employer that the change would entail extra expense, the latter might well infer that no extra charge would be made.
Other cases are relied on in support of the ruling of the arbitrators. Starkweather v. Goodman, 48 Conn. 101 — s. c., 40 Amer. Rep. 152 — is somewhat like Abbott v. Gatch, but it went off on the question of agency, without deciding the question we are considering. The two cases, Miller v.
In this State it has been very many times ruled, and must be treated as settled, that parties may, at pleasure, alter, modify, or rescind a contract, by mutual consent given orally, unless the contract be one which the law requires to be evidenced by writing signed; provided the alteration, modification, or rescission is supported by their mutual assent. 1 Briekell's Digest, 394, § 233; 3 Ib. 152, § 146; Burkham v. Mastin, 54 Ala. 122; Cooper v. McIlwain, 58 Ala. 296; Robinson v. Bullock, 66 Ala. 548; 1 Greenl. Ev. § 302; Bishop Contr. § 812.
We hold that, if the defendant promised to pay for extra work done at his request, and if such work was worth more, considering both materials and workmanship, than the Omitted parts for which it was substituted, then plaintiffs are entitled to recover the difference. If he made no promise to pay, then the presumption arises that the alterations were agreed to be made, and were made, without extra charge.
The defendant testified that, as to some of the items claimed as extra, he embraced them in some of his writings “in a spirit of compromise.” This is not an accurate statement of .the rule of exclusion in such cases. We will not, however, extend this opinion by elaborating the rule. — See 1 Brick. Dig. 838, §§ 479 et seq.; Jackson v. Clopton, 66 Ala. 29; 1 Greenl. Ev. § 192.
: - We have not undertaken to interpret section 3233 of the Code of 1886. No argument has been made upon it, and we will leave its consideration until such time as, perchance, a solution may become necessary.
Be.versed and remanded.