Maxwell & Delehomme v. Moore

50 So. 882 | Ala. | 1909

Rehearing

On Rehearing.

PER CURIAM.

The insistence of the movant for rehearing, that full performance of the contract was prevented by Diggers, as the representative of Moore, was necessarily considered and decided on the original hearing, and the ruling that plaintiff had abandoned the contract was made in denial of the matter now urged as a reason for rehearing. The evidence, in this connection, shows only that Biggers informed plaintiffs'of his (Biggers’) purpose to have nothing to do with the contract, and advised plaintiffs to get Moore’s confirmation of further work done or material furnished by them; and it readily appears that this attitude of Biggers’ was the result of disagreement with Moore. No act or word of Moore’s is shown from which it could be concluded that Moore did or said aught to justify plaintiffs in failing or refusing to fully perform the contract.

The rehearing is denied.

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Lead Opinion

MoCLELLAN, j.

The contract here involved was for the furnishing of the material and the work and labor to apply it in painting a house for defendant (appellee). The contract was not fully performed by plaintiffs — on the contrary, was abandoned by them when approximately 15 per cent, of it was unperformed. The common counts, as here, cannot, under such circumstances, be employed to recover upon a quantum valebat or quantum meruit for the outlay made by plaintiffs.—Carbon Hill Co. v. Cunningham, 153 Ala. 573; 44 South. 1016; Martin v. Massie, 127 Ala. 504, 29 South. 31, and authorities therein cited.

The judgment is affirmed.

Dowdell,, C. J., and Anderson and Sayre, JJ., concur.