95 Ala. 348 | Ala. | 1891
On August 24, 1888, the Circuit Court, in which the suit was originally instituted, made the following entry : “Came the parties by attorneys, and by agreement this cause is submitted to the arbitration of M. J. Miller and J. B. Goodwin, and they to call in a third man, whose award, when made according to law, to be made the judgment of this court in this case.” When the case was called for trial in the City Court, to which it had been transferred under the statute, at the January term, 1891, defendants moved to refer it to the arbitrators under the order of the Circuit Court. The motion was overruled, and the City Court proceeded to try and determine the cause.
Section 3221 of the Code declares : “It is the duty of all courts to encourage the settlement of controversies pending before them, by a reference thereof to arbitrators, chosen by the parties or their attorneys ; and on motion of the parties must make such order, and continue the cause for award; but such continuance must not extend beyond one term, unless for good cause shown, or by consent.” While it is made the duty of the court, in pursuance of the legislative policy declared in the statute, to make an order of reference on motion of the parties, such order does not, under the statute, oust the court of jurisdiction of the case. It remains pending in court, subject to be called at each succeeding term for trial. The suspension for award is not indefinite. The statute places a limitation upon the discretion of the court as to continuing the cause: the continuance must not extend beyond one term, unless good cause be shown, or the parties consent. So far as the present record discloses, and we can look no further, no action was taken in execution of the order of reference,
The complaint contains several counts — one on a special contract for the erection of a dwelling-house, a common count for materials furnished and work and labor done, and a count for extra materials and extra work. The special contract contains a provision, that “no new work of any description done on the premises, or work of any kind whatsoever, shall be considered as extra, unless a separate estimate in writing for the same, before its commencement, shall have been submitted by the contractors to the proprietor, and his signature obtained thereto.” On the former appeal in the case (88 Ala. 367), this clause of the contract was construed. It was then held, that if no estimate in writing for the extra materials and work was submitted to defendant, and his signature thereto obtained, and no promise to pay for the same, no recovery could be had therefor; but, if, during the progress of the work, alterations in the plan were made by mutual assent, and defendant promised to pay for the extra work required by the alterations, plaintiffs, if such work was worth more, considering materials and workmanship, than the work for which it was substituted, are entitled to recover the difference, although no written estimate was submitted and signed. The count contains an averment that, while the building was in course of erection, defendant promised to pay for the extra work and materials, and there is evidence tending to show such promise. Charge 5, requested by defendants, ignores the effect of this evidence, and excludes it from the consideration of the jury. The liability of defendant for the extra work and materials does not rest upon a waiver of the special condition of the contract, but upon a subsequent and distinct agreement to alter or modify the contract, and to pay the increased costs of such alteration or modification. The jury would have understood from the charge that they could not allow for the extra work and materials, unless defendant expressly or impliedly waived the condition, though he may have verbally promised to pay for the same. The charge is misleading.
The part of the general charge excepted to, and several
By the special contract, defendants agreed to pay for the erection of- the house in installments as the work progressed; the fourth and last payment of seven hundred dollars to be made when the building was completed, and the drawings and specifications returned to the architects. The contract contains the provision, “ that in case of the final payment, a certificate shall be obtained from and signed by Chisolm & Green, architects, to the effect that the work is done in strict accordance with drawings and specifications, and that they consider the payment as properly due; said certificate, however, in no way lessening the total and final responsibility of the contractor ; neither shall it exempt the contractor from liability to replace work, if it be afterwards discovered to have been done ill, or not according to the drawings or specifications, either in execution or materials.”
The fourth count declares specially on the contract, setting it out in liaeo verba. To this count a demurrer was interposed, assigning as the ground of objection, that it did not specifically aver that the certificate of the architects was obtained. It avers that plaintiffs “have complied with all the provisions of the contract on their part, and erected said building according to said contract.” The count is substantially in the form of a complaint “on a dependent covenant or agreement,” as prescribed by the Code. Under the statutory form, a mere statement of the contract, with a 'general averment that plaintiffs had complied with all its provisions on their part, and that defendant had failed to comply with specific provisions, is sufficient. These forms have the force of a statute. — Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538.
The question as to the necessity of producing the certificate of the architects was also raised by charges 2 and 3 asked by defendant. Counsel for appellants have called our attention to cases decided by the New York Court of Appeals, in which it was held, under contracts containing similar provisions, that when the parties have made the production of the certificate of the architect, to the effect that
Charges 18 and 19 were properly refused, not only because argumentative in their nature, but also on the principle that, when the bill of exceptions does not set out all the evidence, if the legal propositions asserted by the charges might be met and avoided by proof of facts which would render the charges erroneous, this court will presume that such other facts were proved. — Montg. & Eu. Railway Co. v. Kolb, 73 Ala. 396; McLemore v. Nuckolls, 37 Ala. 662. The same observation applies to charge 12, which is to the effect, that if plaintiffs asked no further time to do extra work, defendant is entitled to reasonable damages for delay in finishing the building after the time of completion provided in the contract. If to do the extra work directed by defendant, and for which he promised to pay, necessarily required longer time to complete the building than allowed by the contract, a reasonable extension of the time will be implied,
Affirmed.