92 So. 1 | Ala. | 1921
The case was before this court on a former appeal.
The legal effect or substance of the contract (4 Encyc. Pl. Pr. 916; Moundville Lbr. Co. v. Warren,
(3) "Should any alterations be required in the work shown or described by the specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architect, and the sum herein agreed to be paid for the work according to the original specifications shall be increased or diminished as the case may be. In case such valuation is not agreed to, the contractor shall proceed with the alteration, upon the written order of the architect, and the valuation of the work added or omitted shall be referred to three (3) arbitrators. * * *"
(12) "And it is hereby mutually agreed between the parties hereto that the sum to be paid by the owner to the contractor for said work and material shall be four thousand three hundred forty-three dollars, and forty cents ($4,343.40), subject to deduction on account of alterations as hereinbefore provided, and that such sum shall be paid in current funds by the owner to the contractor in installments as follows:
"Payments shall be made upon certificate from the architect certifying that such payments are due.
"Contractor will submit to the architect estimates showing materials, etc., used and labor furnished on the building previous to the demands for payment, and the architect will issue certificates for eighty (80%) per cent. of the amount of statements as approved by him. It being understood that before the final settlement is made, the architect shall certify in writing that all the work, upon the performance of which payment is to become due, has been done to his satisfaction. * * *"
And further that —
(13) It is "* * * agreed between the parties thereto that no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, against any claim of the owner, and no payment shall be construed to be an acceptance of any defective work."
(14) "And the said owner hereby promises and agrees with the said contractor to employ, and he does hereby employ, said contractor to provide the materials and to do the said work according to the terms and conditions herein contained and referred to, for the price aforesaid, and upon the conditions above set forth."
The complaint concludes with the averment that, although plaintiff has complied with all provisions of the contract on his part, the defendant has failed to comply with the provision "to pay to the said plaintiff in current funds the sum of money he agreed to pay under said contract or agreement," as provided in the prescribed form. Code, § 5382, subd. 9. Count 8 was in the statutory form. B. R. L. P. Co. v. Littleton,
The fourteenth ground of demurrer challenges the sufficiency of that count, in the fact that defendant promised and agreed to pay the plaintiff in current funds certain sums of money, and that it failed to aver that the terms and provisions of the contract or agreement "have been performed or complied with so as to render the defendant liable." Thus is re-presented the question raised by the second ground of demurrer which we have decided adversely to appellant.
The sixteenth ground of demurer was to the effect that count 8 attempted to set out in full the contract or agreement sued on; that the count shows on its face that it does not do so, in this: "The specifications and addenda mentioned therein not being set out in full or the substance thereof stated." We have made plain that the count avers the agreement in substance, merely setting out in hæc verba the builder's contract as signed, and not unnecessarily incumbering the pleadings with the specifications and addenda of the detailed manner of construction stipulated. Good pleading did not require the plaintiff to incorporate the general specifications and addenda consisting of many details, drawings, etc., in a declaration upon a breach of the contract for the failure to pay the sum stipulated upon full performance by plaintiff. In Davis v. Badder Britt, supra, the contract declared upon did not set forth the plans and specifications of the architect referred to in the contract, and the count was held sufficient. The authorities cited by appellant are not to the contrary. Catanzano v. Jackson,
Many assignments of error, and argument of counsel for appellant, are predicated on the sustaining of demurrers to special pleas B to M, inclusive. On May 10, 1912, attorneys for plaintiff had demurrer to pleas 1 to 7, inclusive, in manner as follows: To plea 1 plaintiff assigned three specific grounds of demurrer; to plea 2, six grounds; to plea 3, one ground; to plea 4, no ground; to plea 5, two grounds; to plea 6, five grounds; and to plea 7, four grounds. Said grounds are indicated by separate numbers and specifically stated. Thereafter the complaint was amended (as to counts 1 to 7, inclusive) "by interlineations therein"; and defendant refiles pleas to said counts as amended and to count 8. Plaintiff demurs to pleas 1 to 7, inclusive; was overruled as to plea 1 and sustained as to pleas 2 to 7, inclusive, "on the ground thereof that the defense therein set up may be proved under the general issue and the other grounds of said demurrer to said pleas 2 to 7 * * * are * * * overruled." Such were the rulings before the former appeal (supra), decided May 14, 1914.
The judgment recital of July 20, 1914, is to the effect that "the defendant moves to withdraw his pleas, and file demurrers to the complaint as amended on the 10th day of May, 1912," which demurrers were overruled; that on July 23, 1914, on motion of defendant, "he is allowed to file pleas a to o," inclusive; and "thereupon plaintiff refiles his demurrers heretofore filed to pleas b to n, inclusive," which were "sustained to the pleas from b to m, inclusive," and overruled as to the other pleas.
A reference to the record proper for the demurrers thus filed to pleas discloses the indorsement of the clerk of the court (of date "7/23/14") under plaintiff's demurrers to pleas theretofore indorsed by the clerk filed in open court on May 10, 1912, to the several and separate pleas 1, 2, 3, 5, 6, and 7. The indorsement was "The plaintiff refiles the above demurrers to defendant's pleas B to O, inclusive, severally and separately. 7/23/14." The ruling of the court in sustaining demurrers so assigned to pleas B to M, inclusive, deprived the defendant of the benefit thereof. The demurrers thus assigned to said pleas made it impossible for the plaintiff or the court to determine what grounds of demurrer were intended to be assigned to the respective pleas numbered from B to M, since the demurrers disclosed by the record proper were addressed to pleas designated numerically and on the several grounds assigned to pleas numbered 1, 2, 3, 5, and 6. The mere indorsement of the clerk, which we have set out, furnished no sufficient information by which it could be ascertained what grounds of demurrer were assigned to each of the respective pleas, A to O, inclusive.
If it be presumed that the court proceeded upon the theory that the grounds of demurrer assigned to either of the pleas numbered 1 to 7, inclusive, were to be taken and considered as reassigned to each of the pleas subsequently filed and designated alphabetically B to O, inclusive, was the same well taken as to each plea? Taking, for example, plea B; it was averred therein that the suit was brought for work and dabor done and materials furnished under a written contract for the construction of a building, and by which it was provided that all matters of difference in relation to said contract should be submitted to the architect whose decision thereon should be conclusive and final, and that the architect should be the sole judge of all matters of workmanship; that said building should be constructed in accordance with certain plans and specifications which were made a part of the contract; and it is further averred that the building had never been completed in accordance with the terms of the contract, but that much of the work had been done and much of the material that has been furnished by the plaintiff is defective and not in accordance with plans and specifications, and "has never been accepted, either by the said architect or by the defendant, but a difference has arisen between the plaintiff and the defendant, which has never been submitted to said architect." The several grounds of the demurrers addressed to the pleas numbered 1, 2, 3, 5, 6, and 7 were reviewed upon former appeal, and the former judgment of the court was reversed on account of the sustaining of said demurrers. We adhere to the former ruling. In George v. Roberts,
The case should be retried upon the issues more clearly defined according to the direction of the former ruling of this court. There being error in sustaining demurrers assigned to pleas, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.