60 So. 461 | Ala. Ct. App. | 1912
The averments of count 3 of the complaint showed the existence of a verbal contract between the plaintiff (the appellee) and the defendant under which the plaintiff was to do certain grading for the defendant at a specified price per cubic yard, the defendant to pay for all grading done on the 15th day of each month after the plaintiff should begin work; that the plaintiff began work under the contract on February 15,1910, and worked continuously up to and including April 15, 1910; and that the defendant failed or
Besides the special count above referred to, the complaint contained common counts on account and for work and labor done. The defendant filed several pleas setting up claims in recoupment growing out of the alleged failure of the plaintiff to comply with specified stipulations made binding iipon him by the terms of the contract upon which his demand was based. As to some of these special pleas demurrers were sustained, and as to others the demurrers were overruled. Counsel for the appellant do not in argument point out any claim in recoupment Avhich was asserted in either of the pleas which went out on demurrer which could not as Avell have been availed of under some of the pleas
The defendant pleaded in recoupment the • existence in the contract upon which the plaintiff’s demand was based of stipulations on his part to complete the grading contracted for by March 1, 1910, and as to the manner of doing the work, and that the defendant had suffered damages in consequence of the plaintiff’s failure to comply with such stipulations. To the pleas to this effect the plaintiff interposed a special replication setting up “that the defendant waived any right that it may have had by reason of the facts alleged in said pleas by recognizing the binding, efficacy of the contract in question after the 1st day of March, 1910, by accepting and using the services of the plaintiff, and making certain payments thereon.” The defendant demurred to this replication upon grounds, among others, suggesting its failure to show such conduct on the part of the defendant as would have the effect of a waiver by it of its asserted claims in recoupment. This demurrer was overruled. This ruling involved the proposition that the defendant, by accepting the benefit of work done by the plaintiff under the contract after the time stipulated for its completion, waived any right it might otherwise have had to recoup the damages sustained by it in consequence of the plaintiff’s failure to comply with his obligations under the contract. A similar proposition was embodied in written charge 8, given at the request of the plaintiff. These rulings cannot be sustained. One for whom another contracts to do specified work within a certain time and in a designated manner does not, by allowing the work to proceed after
One party to a contract does not, by his failure to put an end to it on the other party’s breach of one of its provisions, deprive himself of the benefit of stipulations in his behalf contained in the contract. The result of the rulings above referred to was to deprive the defendant of substantial matters of defense, duly alleged and supported by evidence, upon a ground plainly not entitled to have that effect. For the error in those rulings, the judgment must be reversed.
Reversed and remanded.