Smith v. Davis

43 So. 729 | Ala. | 1907

TYSON, C. J.

The first and second counts of the complaint seek to recover damages for the breach of a written contract, which is attached to the complaint and made a paat of these connts, for repairing and remodeling a residence belonging to defendant. Tbe third is the common count, for materials furnished and work and labor done at defendant’s request. The fourth count was stricken out by amendment during the trial. Only the sufficiency of the second count was questioned by demurrer, rvhich was overruled by the trial court.

The objection raised by the demurrer is that the act of defendant in stopping plaintiff from work-is not alleged to have been wrongful. The allegation of the count, is that “defendant broke said contract in this: That after plaintiff had furnished part of the material and performed part of the work and labor required by said contract, and was in the performance of the work under said contract, the defendant stopped him from work thereon and prevented his completing the said contract,” etc. Every breach of a contract- necessarily involves a wrongful act. The allegation that defendant broke the contract was entirely sufficient. The demurrer was properly overruled.

Whether the ruling of the court in sustaining the demurrer to the first special plea of defendant, as originally filed and as subsequently amended, was enor, it is unnecessary to determine, since it affirmatively appears that the defendant had the benefit of all matters relied upon therein as a defense. The other special plea, as originally framed and as subsequently amended, to ■which a dniurrer was sustained, presented matters of defense which could be properly shown under the plea of the general issue.—English v. Wilson, 34 Ala. 201; O’Brien v. Anniston Pipe Works, 93 Ala. 584, 9 South. 415; Grisham v. Bodman, 111 Ala. 194, 20 South. 514. This being true, the ruling of the trial court, if erroneous, was without injury.—L. & N. R. R. Co. v. Hall, 131 Ala. 161, 32 South. 603.

On the trial the plaintiff’s testimony tended to show7 a breach of the contract by defendant, and that at the time the defendant stopped him he was performing the contract- according to its obligations; that he had, when stopped, furnished materials and labor of the value of $1,407.80. That in behalf of the defendant tended to show (independently of the certificate of the architects, which was held in Davis v. State, 146 Ala. 120, 41 South. 681, sufficient to authorize the owner to terminate the contract) that plaintiff had breached the contract. For the purpose of showing the damages suffered by the defendant by reason of this breach, she should have been allowed to prove by her husband the cost of completing the house after taking possession of it.

The grounds of objection to the certificate of the arcritects, 'showing the amount expended by defendant in completing the house, were clearly not well taken. It was not irrelevant and immaterial to any issue in the case, nor was it necessary to its admissibility that a plea of set-off or recoupment should have been well filed. It was provided for by the express terms of the contract, in the event the defendant, upon a breach of the contract by plaintiff, undertook to complete the construction of the house.

That portion of the oral charge of the court to which an exception was reserved was plainly erroneous. For clearly plaintiff was not entitled to recover both profits and the value of the work and materials. With the testimony admitted, which was excluded, upon another trial, the issues to some extent will be different. We, therefore, do not deem it necessary to review the other assignments of error, which relate only to the written chaiges refused.

Reversed and remanded.

Haralson, Simpson, and Denson, JJ., concur.