58 So. 450 | Ala. | 1912
Demurrers to counts 1 and 2 were sustained. On the motion for a new trial the court required plaintiff to remit such damages as might have been recovered under counts 3 and 4, the common counts, as a condition upon which the motion would be overruled, which was accordingly done. We are to-consider, therefore, only those questions which arose-under counts 5 and 6.
These counts claimed damages as for the breach of a contract between the parties for that plaintiff was. put to great expense and caused to lose profits which otherwise he would have realized, by reason of the-defendant’s wrong in delaying and interrupting plaintiff in the performance of a contract between them. The general purport of the contract dated on September 12, 1907, is sufficiently shown by the quotation we-here make: “Whereas the party of the second part (defendant below, appellant here) has entered into a contract Avith the city of Decatur * * * for the construction of certain improvements, * * * the parties hereto have agreed as follows: First party contracts and agrees to do all grading second may require-for the execution of its above-mentioned contract at the consideration of forty-five cents per cubic yard."' At the time the parties entered into this contract, de fendant had six several contracts with the city of Decatur, all entered into on September 3, 1907, by Avhich. defendant had agreed to do the work of improvemen I on different streets Avhich had been provided for in six different ordinances. All these contracts between the city and defendant provided that: “The contractors- * * * hereby agree to protect and save the city
It may be that certain stipulations of the contracts between defendant and the city constituted an abuse of corporate power, in that they imposed unlawful burdens on the taxpayers, and, for that reason, the contracts might have been avoided in equity at the suit of any one affected; or it may be that the mandatory requirements of the charter of the city of Decatur were such as to render the contract void so that defendant would not have been allowed to recover in a suit brought by it against the city.—Inge v. Mobile Board of Public Works, 135 Ala. 187, 33 South. 678, 93 Am. St. Rep. 20. We have not been at pains to investigate the provisions of the charter for the reason that plaintiff’s contract was collateral to the contract between defendant and the city and referred to that contract for the purpose only of describing the nature and extent of the work to be done; plaintiff took nothing by the obnoxious provision, his contract was, not to perform defendant’s contract with the city, but to perform a certain part of it, lawful in itself, for a lawful consideration. Further, it occurs to us that defendant ought not to have been allowed, on an objection to evidence, to lay the consequences of an unpleaded illegality at the door of plaintiff, who was not a party to the alleged illegal contract. Most of the other errors assigned in this connection are answered by the evidence which went to show, without conflict, that the parties interpreted “a contract” which defendant had with the city to mean in the contract between, and to include
Plaintiff’s testimony was to the effect — and there was none to the contrary — that after he had entered'
But the measure of damages was of importance. As we have already stated, plaintiff claimed profits which he would have realized from the continuous and uninterrupted performance of his contract and for losses suffered in maintaining his outfit during the interruption — elements of damage quite different in nature. The defendant requested the court in writing to charge the jury as follows: “If the jury believe from the evidence that plaintiff resumed his contract with the defendant in April and continued the work thereunder, plaintiff is not entitled to recover any damages as profits which he would have derived from the continuous and uninterrupted performance of said contract.” This charge should have been given, and the liberal estimate placed by the jury upon the plaintiff’s damages renders it probable that it operated to appellant’s detriment. At least, from this error the presumption of injury arises which we do not find to be clearly rebutted by the record. Whatever may have been the proper rule under the circumstances for the admeasurement of damages
A. J. Harris, Esq., was required by the court to answer whether, in negotiating certain transactions with the contract in question and plaintiff’s execution thereof, he acted as attorney for the defendant. In this there was no breach of privilege. It was competent for plaintiff to prove the fact of the attorney’s employment by the defendant as tending to show that the- contract signed by Ingram was the contract of the defendant.—White v. State, 86 Ala. 69, 5 South. 674; M. & M. Ry. v. Yeates, 67 Ala. 164. There was no proof nor any offer to prove any matter knowledge of which the at- . torney had acquired from his client by virtue of his attorneyship.
For the error indicated above our judgment is that the cause must be returned to the lower court for another trial. It is evident that on another trial the issues will be differently presented. We need not, therefore, discuss some questions of minor importance which have been referred to by counsel.
Reversed and remanded.