Gerald & Chambers v. Tunstall

109 Ala. 567 | Ala. | 1895

COLÉMAN, J.

The action is in assumpsit, and the complaint contains two counts. The first- is in common form tor work and labor done ; and the second is to recover a balance due on a contract made between plaintiff and defendant, by which the former agreed to furnish material and make certain alterations and repairs on the dwelling of the defendant for a stipulated amount. The defendant filed three pleas, the first being the general issue, and the second and third were special pleas, to both counts of the complaint. The cause was tried upon issue joined upon the pleas of the defendant. In considering the exceptions to the rulings of the court, and the instructions to the jury, their correctness must be determined with reference to the issues joined. There is an omission in the third plea, as it appears in the abstract, apparent upon reading it, which occurred in copying the plea from the record. Both parties have argued the case as if the defect was cured, and we will treat it the same way. By the terms of the two special pleas, the contract, which is made an exhibit, becomes a part of the pleas, and the pleas aver breaches of the contract by the plaintiff, one of which was a failure to perform the contract in the manner required, and to furnish the materials as agreed upon. These breaches are particularly set out in the pleas. Another breach was the failure to complete the contract by the time stipulated, and a claim of five dollars per day for each day of delay as liquidated damages, that amount having been agreed upon by the contract for each day the completion of the work was delayed after the 18th day of September, 1894. The plea averred that it was provided in the contract that all matters of controvesy as to style of work, materials to be furnished, and liability for delay, should be determined by the architects, Hutchinson & Hammond, and their decision should be final. The plea then sets up that the conditions arose upon which the architects were to act, their action in the matter, the amount allowed to the defendant against the plaintiff for his failure in the several matters determined, which amount the defendant claimed in his plea. Having joined issue upon the plea, if the evidence sustained it, the defendant was entitled to a verdict. The evidence showed, without conflict, that the work was not completed by the 18th of September, 1894. The plaintiff offered to introduce evidence to show that they were not at fault in not completing the work by the time specified, which, upon objection, the court declined to •admit. There was no error in this ruling, If the plaintiff had replied to the plea, admitting the delay and setting out the causes of delay in avoidance, and issue had been joined upon the replication, the evidence would have boen admissible. No ruling of the court in excluding evidence not in rebuttal of evidence introduced in support of the plea can be held erroneous. The abstract does not support the contention that the plea averred that “the delay was chargeable solely to the default of the plaintiff.” The averment of the plea is, ‘-‘that the architects decided that such delay was chargeable solely to the plaintiffs,” and this averment, upon which issue was joined, was supported without conflict.

The abstract contains the following statement: £ ‘The defendant contested many of the items of the account of extras claimed by plaintiff, and the plaintiff contested the items of defendant’s damages. There was much testimony on both sides as to these features of the case, but all that went to the jury without exception.” We understand from this statement that there were no exceptions to the ruling of the court upon any question of evidence, amount of extras, as to the work done by plaintiffs, and its value, and which was recoverable under the common count. The plaintiffs’ case in this respect was fairly before the jury. The exceptions relate principally to Ihe rulings of the court upon questions arising under the defendant’s special pleas, not only as to questions of evidence, but also as to instructions. We are of opinion that the court erred in admitting in evidence the letter of June 23rd. This letter was a proposal by-plaintiffs to do the work on certain terms and conditions. The contract was completed and executed some days afterwards, and, which we hold, contained and expressed the final agreement of the parties, and into which all previous propositions on either side became merged. In no aspect of the case, however, can we see how the evidence was injurious to plaintiffs, or beneficial to defendant. It had no bearing whatever on defendant’s special pleas. They were fully sustained by other evidence, and which was not denied. When the rulings of the court are considered in connection with the case made by the pleadings, we are not prepared to say there was error injurious to appellant'.

Affirmed.