103 Ala. 563 | Ala. | 1893
Action on the common counts. Plaintiffs’ (appellants’) assignor, E. R. Jordan, furnished the material and put on tin roofs on two buildings which were constructed by one M. M. Tye for defendant. One question was whether Tye or the defendant, Dowling, was the debtor to Jordan for this material and work. Upon this issue, Jordan testified for plaintiffs, “That he made a contract with M. M. Tye, as the agent of John W. Dowling, the defendant, to furnish the tin and cover two houses for $474.73; that said Tye told witness, at the time, that Jno. W. Dowling would pay for the work as soon as completed. That after M. M. Tye contracted with him, and-while he was doing the work, the defendant, Dowling, told him that he should have his money when the work was completed, if the roof was 'water proof.”' Witness was requested by Dowling twice to go upon the roof for the purpose of stopping leaks. J.E. Acker testified for plaintiffs, that the account sued on was made out by him, at the request of E. R. Jordan, who transferred it to plaintiffs ; that he first made it out to M. M. Tye, knowing Tye paid off the bills. It was first presented to Tye, and he said he was only the agent of J. W. Dowling. The account was then changed by inserting the name of Dowling, and witness then presented it lo Dowling who promised to pay it. He presented it again, and Dowling paid $100, and said he would pay the balance when tho roof proved to be tight. Ho again presented it, and Dowling told witness to bring suit on it. The foregoing was the material evidence for .plaintiffs.. The defendant introduced Tye, who testified, that he employed Jordan to furnish the tin and do the work;, the arrangement between witness and defend.ant was that witness was to buy and select all the -materials
There was a verdict for the defendant, and plaintiffs moved for a new trial, which was denied ; and that ruling of the court is the only matter assigned as error.
We must presume the jury was properly instructed in the law upon these issues; and, so presuming, conclude that the finding for defendant was upon the first issue above stated ; for the reason that, upon the undisputed evidence, it should have been for the plaintiffs, upon the second issue. The work- having been completed and received by the defendant, the fact that it was defectively done is no defense to an action to recover the contract price, except by way of recoupment of damages sustained by the defendant by reason of the defects ; and to get the benefit of this defense the defendant should have shown what his damages amounted toj according to the legal rules by which such damages are measured. If this were not the law, the defendant would be permitted to defeat the action entirely, and forever bar the plaintiffs from recovering anything, while, at a small cost, he may have repaired the defects, and enjoy forever the use and benefit of a perfect work. As we have said, the defendant gave the jury no data by which to ascertain the amount of his damages, and the finding must have been against him on that issue. So, the only question is, whether the evidence of defendant’s contractual liability to pay plaintiffs’ demand is of that character that the court ought to have set aside the verdict. In Cobb v. Malone & Collins, 92 Ala. 630, we laid down as a guide the rules which should, govern the court in the matter of new trials on the ground that the verdict is contrary to the evidence, in the following language : “The decision of the trial
The special promise made by defendant to Acker, after the work was completed, to pay the account to Jordan, even if it had been unconditional, wag not binding on him, if it was Tye’s debt-, because not in writing, in compliance with the statute of frauds.
Reversed and remanded.