51 So. 559 | Ala. | 1910
— Action against tbe owner by contractors engaged to grade streets and lay cement sidewalks and gutters and also sanitary sewers in pursuit of a. plan to improve a plat of land designed to be, or that was, divided into lots and sold for residential purposes. The complaint, after amendment, consisted of counts 2, 3, 4, and 5 as amended. Tbe first three numbered are tbe common counts, on an account stated, for work and labor done. Tbe last, 5, as amended, complains of a breach of a written contract as that existed
The general issue and payment were pleaded to all of the counts. To counts 2 and 4 these defenses were specially interposed, numbered 5 to 11, inclusive: Abandonment of the undertaking before completion; nonacceptance of the work as complete performance of the contract; no pecuniary benefit, as a result of the work done, in excess of Avhat was paid plaintiffs by defendant; and recoupment of the damages suffered in alleged enumerated breaches of the contract by the plaintiffs. Demurrers to these pleas were overruled, and there are, of course, no assignments in respect to these rulings. To these pleas, except that asserting voluntary abandonment before performance of the contract, replications 2, 3, 4, and 7 were interposed. In replication 2 it is averred that defendant waived full performance by accepting the work done by plaintiffs as it was done. Replication 3 is, in substance, the same as replication 2. Replication 4 is, in substance, the same as 2, except that it is alleged, additionally, that plaintiffs were expressly
These replications were faulty at least in two particulars, pointed out by grounds of the demurrers. In the first place, their averments of waiver of performance of the contract by acceptance of the work done as done are a conclusion of the pleader. It was the proper office of these replications to aver facts from Which the law would deduce waiver of performance. In the second place, mere use, or acts consistent with ownership, of the plot, as in its nature capable, after its improvement by the work and labor of the plaintiffs, though short of full performance of the contract, did not necessarily afford a basis for the law-implied promise to pay the value of the work done as of benefit to the owner. Such we understand to be the doctrine, in one respect, of Davis v. Badders, 95 Ala. 348, 10 South. 422; Aarnes v. Windham, 137 Ala. 513, 34 South. 816; and authorities in each cited. The reason is apparent when it is considered that abandonment of the freehold could not be a condition to nonacceptance of the benefit of the work and labor done. Something more must attend than the mere use or occupancy, or acts consistent with ownership. Furthermore, it is by no means clear from the averments of some of the replications that the acceptance alleged had reference to the acceptance of the
Since a reformation of the pleading will doubtless be undertaken on the trial to be had, there is no necessity to consider the assignments based on rulings on the evidence. The judgment is reversed and the cause is remanded.
Reversed and remanded.