42 So. 838 | Ala. | 1906
This'was an action brought by the appellee (plaintiff) against the appellant (defendant); the complaint containing only common counts on account and for work and labor done and materials furnished. According to the testimony of the plaintiff, he entered into the written contract set out, but, when he appeared at the appointed place on the day on Avliich he Avas to begin work, he found that he did not have men enough to do the work, and requested the general manager of the defendant “to work his hands and pay them until he could get men enough to start on the contract,” and about three or four weeks, .afterwards “he and the defendant * * * had an agreement by Avhich the defendant agreed to take part of the work and do it, agreeing to take up and relay the track of the railroad, which the defendant proceeded to do, and the plaintiff to- do the surfacing of the same.” And under this agreement the plaintiff continued to Avork until he quit in July, 1905. He testified that it was subsequently agreed that he was to have $127.50 per mile for the surfacing; that he surfaced 9 3-5 miles, and performed other Avork and furnished cross-ties, making the total amount of $2,-408.63, to Avhich he Avas entitled, on which Ire has been paid $1,919.71, leaving a balance due of $488.92.'
It will be observed that the plaintiff’s testimony does not claim, that the original contract Avas even abrogated, or substituted by a new contract, but was only
It was legitimate to prove, by those acquainted with the doing of that class of work, Avhat the Avord “surfacing” meant, and whether it included such grading as Avas necessary in this case; and it aauis proper, also, to prove Avhat Avas the custom in regard to the construction companies doing that class of work, and what the cus? toniary charges were for doing it, if additional charge Avas permitted. The evidence sought to be introduced to establish the custom was at least “some proof conducing to- shoAV such custom,” and Avkether it Avas sufficient or not Avas a matter for the consideration of the jury, under the instructions of the court. Hence it was
The terms of the contract show conclusively that the $50, which was to be retained by the defendant, was a penalty “to guaranty completion of the work, and not liquidated damages. — McPherson v. Roberts, 82 Ala. 459, 462, 2 South. 333; Keeble v. Keeble, 85 Ala. 552, 5 South. 149. A substantial part of the work having been performed, and accepted, the plaintiff was entitled to recover therefor on a quantum meruit, -but defendant would be entitled to retain so much of the 50 per mile as would equal the amount of damage resulting to it from the failure of the plaintiff to complete the work. No proof was made of any such damage.
Plaintiff testified to the amount of work done and the reasonable value thereof, which was not controverted, and defendant’s own statement, in evidence, shows an indebtedness to the plaintiff, “leaving out of account the $50' per mile which defendant has the right to retain.” Hence there was no error in the giving of the charges requested by the plaintiff, nor in refusing the charges requested by the defendant.
The judgment of the court is affirmed.